The Magazine

Treating Enemies Like Criminals

Aug 12, 2002, Vol. 7, No. 46 • By DAVID TELL, FOR THE EDITORS
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ABROAD IN THE LAND, needless to say, there is plentiful criticism of the Bush administration's purported tendency to deny terrorism suspects the judicially supervised civil liberties protections of the regular criminal law. Also abroad in the land--in an Alexandria, Virginia, federal district court, for specific example--there is plentiful evidence about the administration's actual handling of such suspects. And the circle cannot be squared, it seems to us.

Self-described al Qaeda operative Zacarias Moussaoui is on trial for his life, charged with conspiracy in connection with the September 11 hijackings. Representing himself pro se, and altogether lost at sea in the regular criminal law, Moussaoui is talking himself closer to a death sentence with every passing week. This, despite the fact that the government's case against him, so far as anyone can tell, is based entirely on inference. According to "sources familiar with tens of thousands of documents that have been assembled for the case," Newsweek's Michael Isikoff reports, "there's nothing that shows Moussaoui ever had contact with any of the 9-11 hijackers." And "some documents even suggest internal FBI doubts over whether Moussaoui really was supposed to be the '20th hijacker.'"

Mind: Zacarias Moussaoui is plainly a fanatic, a very dangerous man, and he needs, at minimum, to be locked safely away for the duration of the war. That much isn't really in question. What is--or should be--in question, we think, is the process by which men like Moussaoui might best be consigned to their necessary fate. Moussaoui, more or less by his own reckoning, was an enthusiastic and active participant in a terrorist war against the United States, sent here, under cover, to do us harm. Thus, he would appear to have been a near-perfect candidate for one of those military-tribunal trials, the government's mere contemplation of which recently had the nation's editorial-page underwear in such a knot. Or perhaps no kind of trial at all was appropriate for Moussaoui, and he should instead have been designated an "enemy combatant," a status he himself has now all but explicitly embraced. Then he could have been whisked off to a military brig somewhere for isolation and interrogation, much as the government has whisked off any number of lower-profile al Qaeda creatures--to the ostentatious horror of Ashcroft-haters everywhere.

But no. The Bush Justice Department has taken its less than legally overwhelming criminal case against Moussaoui into U.S. district judge Leonie Brinkema's courtroom. There the defendant is being offered all the same procedural rights and guarantees to which an honest-to-God American citizen would be entitled. Some of which rights Moussaoui has already thrown away from pure ignorance, thereby threatening to turn his trial into an abject farce.

Why has the Bush administration proceeded as it has--so scrupulously attentive to the ordinary legal niceties--with Zacarias Moussaoui, of all people? It would seem a mystery. It would certainly seem a mystery, at least, to the average trusting, loyal New York Times subscriber, who probably repeats it in his sleep by now, so many times has he been told that the president and his attorney general are raping the Constitution. We note that the Times, no doubt the better to preserve that monochromatic fantasy undisturbed, these days only rarely deigns to pronounce on the Moussaoui trial at all--and speaks in an uncharacteristic whisper when it does. We note, in fact, that most critics of the administration's "military" detention policies, the Washington Post honorably excepted, have conveniently declined to notice, much less express misgivings about, what's now unfolding before Judge Brinkema. Which represents, after all, those critics' stated preference for court-supervised procedures made embarrassingly real.

Be that as it may. The question remains: Why is Moussaoui giving speeches in an Alexandria courtroom? Why is he not under an MP's watch at Guantanamo Bay or Norfolk Naval Station? Late last year, when it came time once and for all to choose between these alternatives, the Bush administration surely understood that failure to grant Moussaoui a regular jury trial would generate ferocious "human rights" complaints, not just on Manhattan's West Side but all around the world. And surely, too, this unhappy prospect wasn't entirely irrelevant to the ultimate decision to seek and secure his formal indictment.