The circus is in town?

Ah, Wall Street Journal OpinionJournal, always ready to malign U.S. courts.

Moussaoui's Mess
A terrorist's joy ride through the U.S. legal system.

Friday, March 17, 2006 12:01 a.m.

The Zacarias Moussaoui legal circus may finally soon leave town, though not without teaching everyone a few lessons about terrorists and civilian courts. In the more than four years since he was charged with six counts of conspiracy related to the 9/11 terrorist attacks, the "20th hijacker" has mocked the U.S. criminal justice system.

He finally pleaded guilty last year, and this week at his sentencing trial the al Qaeda operative got some help from an unexpected quarter--the U.S. government. A lawyer working for the prosecution was found to have improperly coached several key government witnesses, leading Judge Leonie Brinkema to bar their testimony. As a result, Moussaoui may be spared the death penalty and instead spend the rest of his life in prison.

The witness coaching was a prosecutorial blunder, which is a shame, but that is not the main issue here. A bigger mistake was President Bush's decision nearly four and a half years ago to assign Moussaoui to trial in a civilian criminal court. As we know from captured al Qaeda training manuals, recruits are instructed in how to exploit the West's legal system if they are caught. The lesson of the Moussaoui trial is that the regular criminal justice system isn't up to the job of trying most terrorists.

Moussaoui would have been the ideal defendant to inaugurate the President's then newly announced--and subsequently much maligned--military commissions. Much of the evidence against him was unclassified and could have been produced in open court. If he had demanded access to classified information--as he did during his criminal trial--it would have been an easy matter to seal the courtroom and show it to his lawyers, all of whom would have had security clearances. The criminal prosecution was a missed opportunity to show the world how trial by military tribunal would work.

Which brings us to Hamdan v. Rumsfeld, which the U.S. Supreme Court will hear later this month. The case challenges the constitutionality of the military commissions announced by Mr. Bush on November 13, 2001, to try suspected terrorists. It further argues that the tribunals are unlawful under the Geneva Convention. A lower court ruled in 2004 that military commissions violated international law, a decision overturned last year by the D.C. Circuit Court of Appeals. The case was brought by Salim Ahmed Hamdan, who was Osama bin Laden's driver and is being held at Guantanamo.

We've heard that throughout the trial -- that U.S. criminal courts are simply not the place to try suspected al Qaeda terrorists. Most baffling has been that the criticism did not end with the start of the sentencing phase of the trial. After all, a U.S. criminal court found Moussaui guilty, and now the court is considering imposing the death penalty. Seems to have worked according to Hoyle.

So let's consider what would have happened had Moussaui been sent to Gitmo and tried in a military court. Well, let's just say he'd probably be saying, as he did today, that "you're not dead until you're dead" for a long time to come.

The administration dramatically announced after Sept. 11 that it planned to revive a form of military trial not used since the World War II era. The idea was to achieve swift justice unencumbered by the niceties of trial in American federal courts. After all, as the case of Zacarias Moussaoui has since vividly illustrated, trials of al-Qaeda figures can test the capacity of the American civilian justice system. The administration was right that some alternative form of military trial for accused terrorists captured abroad was essential.

The military could have turned to a proven method by which it conducts trials every day: the general court-martial. Had the administration gone to Congress and adjusted the court-martial for the task at hand, it would have benefited from a system in which military lawyers are already adept. It also would have received the blessing of the legislature for whatever deviations from the usual rules might have been necessary.

Instead, the military sought to design a new system from scratch. In doing so, it has bungled. The commission rules have shifted constantly. A legal cloud has hung over its entire process. It has risked genuine unfairness. It has undermined the prestige of American justice. And, ironically, it has moved at a glacier's pace, having successfully tried not a single person to date -- thereby defeating its entire purpose. Even if the administration prevails at the high court this time, the problems will not go away. The system is a disaster, and it needs revamping.

I disagree with the Posts' contention that, should we capture bin Laden tomorrow, we have no means to try him. The Moussaui case puts the lie to that. Yes, it could be maddening. Yes, we had to put up with his grandstanding. But he's on trial for his life. And given his day on the stand, I'm guessing the jury may well want to help pull the switch.

Truth is, the Cheney administration would prefer putting no one on trial for the murders of Sept. 11, 2001 if a trial -- or military commission -- means gathering evidence that won't get thrown out of court, or if it means exposing the use of torture and extraordinary rendition to gather that evidence.