U.S. District Judge Leonie Brinkema (Eastern District of Virginia) is standing firm in the face of efforts from John Ashcroft to diminish constitutional rights in her courtroom. The Zacarias Moussaoui case is the most famous of her showdowns with Ashcroft. She is currently preparing to impose some sanctions on the prosecutors for refusing to obey her order to make a witness available for questioning by Moussaoui.
She is resisting a blanket approach to defendants charged with terrorist-related crimes. In recent days, she has released defendants on bond and conditions, finding that they are not the public danger the prosecutors made some of them out to be. The U.S. has charged 11 men, nine of whom are U.S. citizens, with conspiring to join al-Qaeda.
Brinkema did not find the evidence convincing and released four of the nine pending their trials. Finding smoke, but no fire, as to these four, Brinkema said that the government had not met it burden to show dangerousness to the public if they were released on bond.
Judge Brinkema has been a model of restraint in handling the pre-trial maneuvering in the Moussaoui case, taking constant abuse from him with grace and equanimity. Her goal is to give him a fair trial under the Constitution; she has repeatedly told prosecutors that she will not have less than full constitutional protection for the defendants. That does not sit well with Ashcroft, who wants the law to bow to his whims.
Though he says that turning over the witness to Moussaoui would jeopardize national security, Siobhan Roth, writing for Legal Times, says that excuse is a red herring. He reports that Moussaoui has already had access to the very classified information the deposition might reveal. The government gave it to him on April 25 in the form of a proposed substitution for the deposition -- a narrative purported to contain anything the enemy combatant might say in a deposition. Moussaoui also received a limited security clearance to review the materials. According to court documents, the narrative included statements both detrimental and helpful to Missouri's defense.
In addition, there is little chance that the deposition that Brinkema ordered could result in the disclosure of additional classified information. The deposition would be conducted by satellite transmission with a time-delay mechanism so that intelligence officials could interrupt the transmission at any time, according to a brief filed with the 4th U.S. Circuit Court of Appeals by Moussaoui's standby counsel.
What the case is really about is a struggle between the Executive and Judiciary branches of government. In its appeal to the 4th Circuit, the government argued that the nation is at "war." And when at war, judicial powers in cases like Moussaoui's revert to the Executive Branch of government--Bush and Ashcroft.
Brinkema disagrees. In the opinion ordering the witness be produced she said, "When the government elected to bring Moussaoui to trial in this civilian tribunal, it assumed the responsibility of abiding by well-established principles of due process. To the extent that the United States seeks a categorical, 'wartime' exception to the Sixth Amendment, it should reconsider whether the civilian criminal courts are the appropriate forum in which to prosecute alleged terrorists captured in the context of an ongoing war."
Why doesn't the government simply remove Moussaoui from federal court and try him in a military tribunal? Or not try him at all--just lock him up forever without a trial (as is being done with Americans Yaser Hamdi and Jose Padilla)? I believe the answer is that the government is counting on the 4th Circuit Court of Appeals, the very-right leaning review court that is likely to agree with the government, to overrule Brinkema, forcing her to throw out the Constitution as her guidebook whenever the government says it is irrelevant.
Removing the first brick in the wall that gives defendants some protection from an overreaching government interested more in convictions and power than justice and the people would be a dangerous precedent. And make it easier for any Executive--Republican or Democrat--to take away power from the courts and the people and give it to itself.
Judge Brinkema is expected to tell the government today how it will pay for refusal to do what the rest of us must--obey a judicial order. If she orders something short of dismissing the case against Moussaoui and the government appeals to the 4th Circuit, you can safely assume that the government wants to win to set a precedent. The desire to win at any cost is precisely why we have a Bill of Rights--and why Judge Brinkema wants to hold the government to its bargain it made with the people.
