Dave Eberhart, NewsMax.com
Thursday, June 5, 2003

If the appeals court agrees that Al-Shibh is a material and competent witness for the defense and vital to the defendant’s Sixth Amendment right under the Constitution to seek out witnesses, the government may run out of options, withdraw its case in federal court and make Moussaoui the first and most infamous grist for the controversial military tribunals, which are just now getting organized.

Frank W. Dunham Jr., the federal public defender for eastern Virginia and one of those defending Moussaoui, said that Attorney General John Ashcroft had filed an affidavit to the court that stated Al-Shibh would not be made available for defense testimony. The government argument is that permitting the interviews and potential testimony of Al-Shibh would compromise national security.

Moussaoui, who is on trial for his life, has admitted that he was a follower of Osama bin Laden but has consistently denied that he was a conspirator in the 9/11 hijackings. Defense lawyers say Al-Shibh has key information bearing on Moussaoui’s claim of lack of knowledge of the impending deadly hijackings of 9/11 that killed over 3,000 at the World Trade Center, the Pentagon and in Pennsylvania.

To date, however, the government has provided the defense only with a transcript of statements from Al-Shibh, which defense lawyers maintained, in a brief, provided “mixed, matched, integrated and chronologically reorganized” interrogation statements from Al-Shibh " into one seamless script, or story line." The government had submitted the statements as a substitute for closed circuit television questioning of Al-Shibh.

According to media reports, Moussaoui at the time of his detention was carrying the phone number in Dusseldorf, Germany of Ramzi bin Al-Shibh. At that time Al-Shibh was still a fugitive. He has since been captured in Pakistan. Al-Shibh was a member of the Hamburg al-Qaeda cell that included Mohammed Atta, who flew American Flight 11 into the World Trade Center on Sept. 11.

Financial Coordinator

Reportedly, Al-Shibh served as a financial coordinator for the 9/11 conspiracy, sending $14,000 in two wire transfers to Moussaoui, who allegedly used some of the cash to enroll at a Pan Am flight school in Eagan, Minn., where he paid $8,000 to use flight simulators designed to train commercial pilots. Thanks to a tip from suspicious instructors, the FBI intervened and detained Moussaoui on Aug. 17 on immigration charges.

In argument before the appeals court, Dunham maintained that the Justice Department should not be allowed to use national security arguments to override the rights of a criminal defendant. He added that Al-Shibh had potential testimony that was “extremely exculpatory” to Moussaoui and that “a jury that decides whether a defendant lives or dies” should hear it, according to the Times Report.

The wrinkles in the Moussaoui case are not unexpected. Proponents of the tribunals have pointed out that they are the only practical forums to try such cases, citing: terrorists could intimidate a jury; the potential compromise of intelligence during normal criminal discovery; the proceedings in open regular civil forums could provide a platform for propaganda; and the danger of permitting long, drawn-out proceedings.

Assistant Attorney General Michael Chertoff in his argument to the appeals court panel described Al-Shibh as an enemy combatants held overseas and maintained that the defense did not have the “constitutional right to force the U.S. military to compromise its military operations overseas.”

But panel members countered with the question whether it was Chertoff’s position that the national security concerns were so great that the court should “not even consider” Moussaoui’s Sixth Amendment rights.

Chertoff replied the protections of the Sixth Amendment did not extend overseas to witnesses who have the status of enemy combatants, adding that the Moussaoui defense team was attempting to “change the course of a military operation.”

Paving the Way

Meanwhile as the appeals court deliberates, the government is apparently paving the way to potentially jump Moussaoui to a tribunal. At the end of last month, the U.S. named prosecution and defense chiefs for the military tribunals that have been in suspended animation as long as many prisoners have been held at Guantanamo Bay, Cuba -- since January 2002.

Although President Bush has yet to sign any executive order to designate which detainees from the Afghan conflict might be tried by tribunal, the development reportedly signals the potential kick-off of the special military forums later this year. “Although the president has not made a determination that anyone will stand trial by military commission, we have the responsibility to be ready should he make that decision,” advised Paul Koffsky, the Pentagon’s deputy general counsel.

Designated as the chief defense lawyer, Air Force Col. Will Gunn said his team will work to ensure that detainees are given the best legal representation possible. That team may include experienced civilian attorneys now being solicited and screened. “We don’t have a group of people who will roll over and go with whatever the prosecution presents,” Gunn said.

Designated as the acting chief prosecutor, Army Col. Fred Borch announced that he is already reviewing at least 10 possible cases for tribunals. Borch pledged that the tribunals would be tough but fair. “I can tell you that every single case that merits prosecution, that we’re told to prosecute, we will prosecute.”

According to Borch, those being reviewed as possible candidate to stand trial before the tribunals of 3 to 7 military officers might indeed include Jose Padilla, the Chicago man arrested in an alleged “dirty bomb” plot.

Now, if the appeals court in Richmond sides with the Moussaoui defense, there may be one more in line to face trial by tribunal. Such panels, operating with diminished rules of evidence and without recourse to a jury and certain appeal routes, would convict and sentence by a majority vote – with death sentencing requiring a unanimous vote.

It is likely, however, that any move by the government to remove the Moussaoui case to a tribunal will result in a fresh flight of defense motions to frustrate such a tactic on yet more Constitutional grounds.

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