IN EARLY DECEMBER, President Bush had to decide what to do about Zacarias Moussaoui. Moussaoui is the French citizen of Moroccan descent who entered the United States back in February. On August 16, having aroused suspicions at a flight school in Minnesota, he was detained on visa violation charges. He’s been in custody ever since. The government believes he was part of the al Qaeda operation of September 11 that massacred more than 3,000 Americans. Presented with the evidence against Moussaoui, Bush had two alternatives: try him in a military tribunal, or prosecute him in the federal courts. Bush chose the latter. The president of the United States has a duty to see that the laws are faithfully executed, but rarely do presidents get involved in decision-making in a particular case. Bush’s choice to get involved in Moussaoui’s case has a simple explanation: We’re at war. And because we’re at war, Bush, acting on his authority as commander in chief, issued an order in November authorizing military tribunals to handle cases against non-citizen terrorists and their accomplices. Because Moussaoui is not an American citizen, Bush had the option of asking for a military tribunal. Vice President Richard Cheney has said Bush had two reasons for going with the ordinary justice system. He thought the case against Moussaoui was strong. He also agreed with an assessment that Moussaoui could be prosecuted without compromising national security. Handed up on December 11, the indictment charges Moussaoui with conspiracy, specifically with conspiring to commit acts of terrorism, destroy aircraft, use weapons of mass destruction, murder U.S. employees, and destroy property. The indictment names 23 co-conspirators, including Osama bin Laden and the 19 (dead) men who hijacked the four planes that were smashed into the World Trade Center Towers, the Pentagon, and a field in rural southwestern Pennsylvania. The indictment alleges no direct contact with the hijackers. But the circumstantial evidence stacks up. According to the indictment, Moussaoui’s actions mirrored some of those of the 19 hijackers. He trained at an al Qaeda camp in Afghanistan. He attended flight schools in the United States. He got funds from sources in Germany and the Middle East. He inquired about crop-dusting equipment that could be used to commit terrorism. The government’s view of Moussaoui is that, in the words of Attorney General John Ashcroft, he was “engaged in the same preparation for murder as the 19.” The strength of the case against Moussaoui–and bear in mind that Bush likely was told more about the case against him than is in the indictment–can be seen in the obvious difficulty his lawyers will have. As former federal prosecutor Andrew McBride says, they will have to explain the circumstantial evidence by “alternative means,” and that would seem awfully hard to do. As for national security concerns, the issue here is whether there is evidence against Moussaoui that the intelligence agencies would rather not reveal but which is necessary for conviction. In national security cases, defense lawyers have been known to force the government to choose between dropping charges and revealing secrets. Presumably if the Moussaoui case had presented this kind of dilemma, Bush would have opted for a military tribunal. One top Justice Department lawyer told me that the evidence in the case is not problematic from a national security standpoint. In her reading of the indictment, Victoria Toensing, who oversaw terrorism cases as a deputy assistant attorney general during the Reagan administration, says that the evidence seems likely to “have been gathered in conformance with the Constitution. The case for a tribunal is when you get your evidence from all kinds of places you can’t reveal.” In choosing between a military tribunal and the ordinary federal courts, Bush also may have considered the fact that the Defense Department has yet to issue the rules under which tribunals would operate. That system is, like some pages you find on the web, under construction. And Bush may have been impressed with the Justice Department’s strong desire to hold onto the case. In recent years, the department has been criticized for its counterterrorism work. After September 11, it made fighting terrorism its top priority. One White House official says Justice made “repeated expressions” as to how morale would be hurt if those at the department and in the FBI who “had worked so hard on this investigation” were to see Moussaoui “taken out of [the ordinary justice] system and put in the military system.” Moussaoui is due to be arraigned in the Eastern District of Virginia on January 2. The district is known for its “rocket docket”–the speed with which cases are disposed of–and for pro-government juries. Moussaoui has been assigned capable public defenders. The Justice Department’s prosecution team includes veterans from the U.S. attorney’s office in the Eastern District of Virginia and from the office–long familiar with terrorism prosecutions–in the Southern District of New York. Lawyers who’ve practiced in the Eastern District say the trial could be held as early as May but is more likely to take place in the late summer or early fall. So United States v. Zacarias Moussaoui is going to be with us for a good while, a very public reminder of what happened on September 11. Terry Eastland is publisher of The Weekly Standard.
