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.

Notice first, though: Were it true, as it is so commonly and cavalierly suggested, that Bush, Ashcroft, and Co. are heedless of or even outright hostile to the Bill of Rights, then fear of civil libertarian reaction would indeed have been entirely irrelevant to their decision-making about Moussaoui. And consider a diametrically opposite possibility, as well: Were naked PR imperatives--rather than more elevated deliberations over legal principle, say--the paramount factor in Bush administration terrorist detention policies, then all the detainees would by now have been indicted, not just Moussaoui and a handful of others.

Our White House and Justice Department must be a tad more complicated than their critics let on. And that's putting it mildly. Properly considered, the case of Zacarias Moussaoui reveals a Bush administration inclined, both by instinct and conviction, to proceed where feasible--even in the absence of public pressure and even when the law does not require it--with quite striking caution about the "rights" of terrorism suspects.

Back at the beginning, last August, Coleen Rowley and other agents in the FBI's Minneapolis field office wanted permission to conduct a secret search of Moussaoui's apartment and computer. But the Washington headquarters types said no, reasoning that the Bureau did not have requisite "probable cause" to believe that the proposed searchee was currently and directly operating for an identified terrorist organization. This sequence of events, which left Moussaoui immune from serious law enforcement scrutiny until after the September 11 hijackings, has since entered legend, of course. Agent Rowley, for instance, has become a "whistleblower" hero, star of splashy congressional hearings on how the FBI and its Justice Department superiors misunderstood and thus misapplied the "probable cause" standard embodied in the Foreign Intelligence Surveillance Act of 1978 (FISA). "Everybody knows" the feds should have been all over Moussaoui from the git-go.

But even this much is a ridiculous cartoon, as we have previously argued in these pages. The text and intent of FISA are reasonably clear. Agent Rowley was wrong; Washington was right: Last August, she and her Minneapolis officemates did not have "probable cause" to believe Moussaoui was actively working for a specific terrorist group. (Until a few weeks ago, in fact, when he suddenly pledged "bayat" to Osama bin Laden in open court, circumstantial evidence and common sense alone tied Moussaoui to al Qaeda.)

And there is more to say. The whole debate about FISA assumes--and the Bush administration officially shares the assumption--that executive branch conduct of national-security related physical and electronic surveillance may properly be regulated by such a legislative enactment in the first place. This is a dubious proposition, as it happens. The judiciary, for its part, has long and consistently refused to intervene against the executive where such matters are concerned, holding that the president retains an inherent and plenary power to protect the nation against foreign threat as he sees fit. One branch of our government cannot lawfully circumscribe the inherent and plenary powers of another. Insofar as it pretends to do so, FISA would appear to be unconstitutional. Nor does the Constitution independently impose any obvious limitation on a president's authority secretly to search something like Zacarias Moussaoui's laptop. The Fourth Amendment's "probable cause" requirement applies to "warrants" issued in connection with evidence employed in a criminal proceeding. It does not apply globally. It does not apply, for example, to searches or seizures designed to prevent somebody from crashing an airplane into the World Trade Center. And it does not apply to illegal aliens, like Moussaoui, at all.

In other words: The FBI might quite reasonably have pursued Zacarias Moussaoui last August, FISA notwithstanding, but did not. One year later, a mainstream, hardly crazy, civil-liberties-respecting Bush administration might at very least be asking Congress, also quite reasonably, to relax FISA's "probable cause" strictures--so that future Coleen Rowleys can snoop on future Zacarias Moussaouis without "violating" a law that likely isn't constitutional anyhow. But the Bush administration isn't doing that either. Republican senator Mike DeWine has proposed such an amendment to FISA, and even Democrats like Pat Leahy say they're open to the idea. Leahy's is too rough a constitutional sensibility for George W. Bush and John Ashcroft, though. At a hearing last Wednesday, CIA and Justice Department representatives told the Senate Select Intelligence Committee that DeWine's idea was inconsistent with the administration's vision of the Fourth Amendment.

News flash: Our president and his attorney general are, if anything, oversolicitous of the (imaginary) civil liberties of their war-on-terrorism POWS. But don't hold your breath waiting for the newspapers to notice.

--David Tell, for the Editors