The Justice Department still wants to conduct a trial of Zac Moussaoui, the (by now) confessed al Qaeda member who is under indictment for participation in the Sept. 11th plot (which he still denies). Moussaoui, acting as his own lawyer, is demanding that the government produce witnesses for his defense who are now in custody at Guantanamo. The request is now on appeal. The upshot?
Bush administration officials acknowledge that a ruling against the government in the courts would almost certainly prompt the Justice Department to abandon its prosecution of Mr. Moussaoui in a civilian court and turn him over to the Pentagon for a military tribunal. The case could finish up before the Supreme Court.
In a tribunal, Mr. Moussaoui would most likely have far fewer rights to seek out defense testimony from Mr. bin al-Shibh and others and to control how his case was presented to a jury.
The officials say that a decision to abandon a civilian trial would create dismay at the Justice Department, which wants to retain its authority to prosecute terrorists in civilian courts, but that the Pentagon has made it clear that it would never agree to make important Qaeda suspects available for testimony on behalf of Mr. Moussaoui.
"The implications are uncomfortable," a senior administration official said. "If the Justice Department can't prosecute Moussaoui, there's general agreement that we'll need to avoid civilian trials for other suspects like him." The official said that "these cases will become the Pentagon's show."
So, Rumsfeld sets up his own parallel foreign policy, and his own set of courts for "terrorists" on the domestic side (though not soon enough for the likes of Eric Rudolph). And so we drift from the America we knew, to a less compassionate, uglier country -- one which seems to be acquiring the apparatus of military governance, as it were, on the installment plan.