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what, exactly, are Zacarias Moussaoui's constitutional rights? The
34-year old French Moroccan is sometimes referred to as the 20th
Hijacker, because it appears he was part of the group that carried
out the attacks on the World Trade Center and the Pentagon. But
Moussaoui might be better known as the Stupid Hijacker, since he
was picked up by authorities a month before the attacks when he
raised suspicions at a flight school by openly declaring his desire
to learn to fly — but not to take off or land — a commercial
jet.
Now Moussaoui
sits behind bars somewhere in New York. The Justice Department will
not comment on his case, but he is said to be refusing to cooperate
with authorities investigating the terrorist attacks. It appears
that Moussaoui, who was originally detained in Minnesota on immigration
charges, is being held as a material witness in the events of September
11. "A person who is arrested pursuant to a material witness
warrant is presented to a judge, entitled to have counsel appointed,
and is detained only if the judge decides he is a flight risk,"
says Susan Dryden, a Justice Department spokeswoman. "All material
witnesses have been presented before a judge and represented by
counsel."
Now the question
is what to do with Moussaoui. In dealing with him and other alleged
terrorists, the government has two main options: conventional and
unconventional.
If the government
chooses the conventional route, law-enforcement authorities could
charge Moussaoui with a crime if there's enough evidence to establish
that he was a co-conspirator in the September 11 attacks. He could
then be kept in jail under pretrial detention laws, but the government
would have a legal obligation to give him a speedy trial —
and make at least some of its evidence public. Another possibility
is that the government could continue to hold Moussaoui without
bond as a material witness even if he is not charged with a crime.
That could go on for a very long time — long enough for prosecutors
to place his actions in the context of new information that might
be discovered in the course of the war on terrorism. A third possibility
is that prosecutors could take action against Moussaoui on immigration
charges.
But each of
those choices leads to a question: Is the purpose of prosecuting
Moussaoui to punish him or to get information out of him? It's not
really an either/or issue, but prosecutors will have to base their
strategy on the likelihood of learning anything of value from Moussaoui.
"My experience is that terrorist cells operate on a need-to-know
basis," says Michael Wildes, a former prosecutor and immigration
lawyer who represented Hani al-Sayegh, a Hezbollah member suspected
in the 1996 bombing of the Khobar Towers barracks in Saudi Arabia.
"It's likely that he may not be able to tie others to more
impressive information, but only the intelligence and law enforcement
agencies can make that decision."
If the government
believes that Moussaoui does indeed have valuable information, another
option would be to send him to some nation that is friendly to the
United States but unfriendly to terrorists. There, Moussaoui —
without the rights he has in the U.S. — could face torture
and other rough handling designed to coerce him to tell authorities
what he knows. If American officials choose that option, they might
not even have to follow through on the plan. "Sometimes just
the threat of that will encourage people to cooperate here in the
United States, where they are likely to keep all of their limbs
when they are interrogated," says Joseph diGenova, a former
U.S. Attorney in Washington. The problem is that if Moussaoui stays
silent and is deported, there are no guarantees the cooperating
government will actually get information out of him.
Those are the
conventional options. The unconventional choice is to take terrorist
cases out of the civilian justice system altogether. The government
could create some sort of new — and semi-secret — judicial
body to handle cases like Moussaoui's. In that scenario, a military
war-crimes commission or other specially created court would try
alleged terrorists in a way that would protect U.S. intelligence
secrets. It's an idea that is receiving serious consideration. "This
does not belong in a courtroom," says Michael Wildes. "This
was an act of war."
Such actions
are not without precedent. These days a number of experts are discussing
a case from World War II in which eight Germans were captured after
entering the United States with plans to commit terrorist acts.
They were tried by a special military commission set up by President
Franklin D. Roosevelt, and six of them were executed in short order.
The president still has such extensive, if vaguely defined, powers
to hold and try suspects for national security reasons. "The
outer limits of presidential power to sequester individuals who
are a threat to the United States are as yet undefined," says
diGenova.
It's not clear
if any of those measures will be used in case of Moussaoui and other
suspects now being held in the United States. But the national security
implications and problems involved suggest that officials should
try to make sure that there are as few as possible new cases in
the future. President Bush has made it clear he wants Osama bin
Laden and his al Qaeda associates "dead or alive." As
a practical matter, the United States would be much better off if
it is the former, and not the latter.
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