My main objection to trying foreign terrorists in federal district court is dogmatic, not pragmatic. These guys no more deserve access to our federal courts than to our welfare system.
But this is not to minimize the pragmatic arguments against granting such access. Andy McCarthy explains why yesterday’s Fourth Circuit decision upholding the conviction of Zacarias Moussaoui demonstrates that, if Moussaoui had contested his guilt, things might well have turned out very differently:
The appellate court notes that Moussaoui claims it was error for the trial judge to interfere with his unqualified right to represent himself; “to have personal, pretrial access to classified, exculpatory evidence”; and to be able to summon witnesses like co-conspirator Khalid Sheikh Mohammed for trial testimony. The Fourth Circuit acknowledges that all these claims have merit, but the court finds that Moussaoui, by pleading guilty, waived any claim of prejudice. Opinion at pp. 24-28. Even more alarming, the Fourth Circuit concedes that its waiver rationale is inconsistent with a decision by the Ninth Circuit on which Moussaoui relies — i.e., if the Fourth Circuit had followed the Ninth Circuit, there’s a good chance it would have had to agree that, regardless of the guilty plea, Moussaoui’s convictions should be reversed.
Memo to the Department of Justice: if you insist on trying these guys in federal court, don’t do it on the West Coast.
As for the KSM trial that’s headed New York’s way, McCarthy writes:
In the next case — like, say, KSM’s civilian trial — the defendants will be smart enough not to plead guilty. They will insist on getting every piece of intelligence they’re entitled to. And the prosecutors will look at this ruling on Moussaoui’s appeal and realize they’d better give it to them or risk having the case thrown out. That’s what the law-enforcement approach buys you.