The Military Option

It looks like accused terrorist Zacarias Moussaoui will soon follow the same path as Ali Saleh Kahlah Al-Marri, the alleged Al Qaeda agent who was transformed from a criminal defendant into an "enemy combatant."

U.S. District Judge Leonie Brinkema has ordered the government to let Moussaoui question 9/11 conspirator Ramzi bin al Shibh. The Justice Department accuses Moussaoui of planning to participate in the 9/11 attacks, and he says al Shibh's testimony would exonerate him. But the Bush administration, which is holding al Shibh at an undisclosed overseas location, refuses to make him available for the videoconference deposition Brinkema has ordered, saying it would endanger national security by revealing classified information. Hence the charges against Moussaoui probably will be dismissed or dropped, after which the Justice Department is expected to hand him over to the Pentagon for trial by a military tribunal.

The Moussaoui case again illustrates the pressure that can be brought to bear by threatening to reclassify criminal defendants as enemy combatants: If they insist upon their rights, they can be transferred to a venue where those rights do not apply. (That's assuming they're lucky enough to get any trial at all; they could just be held indefinitely without being charged.) A story about U.S. plans for military tribunals in Sunday's New York Times began by noting that "United States officials…greatly want the trials to be seen as fair." Yet the ability to question someone with direct knowledge of your guilt or innocence seems to be a pretty important part of defending yourself.