The prosecution of Zacarias Moussaoui as the alleged 20th hijacker in the Sept. 11 attacks is creating friction with fundamental civil liberties guaranteed in the US Constitution.
At issue is the extent to which federal prosecutors may continue to impose strict, special security measures on Mr. Moussaoui that directly hinder his ability to serve as his own lawyer and develop an effective defense.
Moussaoui is being held in solitary confinement and barred from nearly all contact with the outside world. Prosecutors say the harsh tactics are necessary to shield the nation from possible acts of terror carried out by Moussaoui from his cell.
Defense lawyers familiar with Moussaoui's situation say it is a constitutional "train wreck" in the making. They say that unless the government allows Moussaoui to consult with legal experts, find and talk to defense witnesses, and gain access to key evidence, his right to a fair trial will be effectively denied.
The fair-trial issue is particularly acute in cases like Moussaoui's in which the US government is seeking the death penalty, these lawyers say. In fact, no American judge has ever directly ruled on the issue emerging in this case: whether federal prosecutors may impose security restrictions that significantly tie the hands of a defendant who is representing himself in a capital-punishment case.
"I can't think of an analogous circumstance in which you hand the keys to the defense over to the prosecutors and say, 'You get to decide the kind of access [Moussaoui] has to the outside world, even as it affects his ability to defend himself," says Gerald Zerkin, an assistant federal public defender who is on a team of experienced lawyers appointed as standby counsel for Moussaoui.
Because of the very real dangers of the ongoing war on terror, the Moussaoui case raises difficult questions about how to balance the right to a fair trial against the government's duty to safeguard national security.
The issue arises at a time when a wide range of government antiterror initiatives have put civil liberties in a different light. The indefinite detention of "enemy combatants," as well as the secret jailing of up to 1,200 individuals on suspicion that they might possess useful information, has generated controversy.
Despite these government actions, a federal judge in Boston has ordered a relaxation of the special security measures applied in the case of alleged shoe-bomber Richard Reid. "[Mr. Reid] has the right to the most vigorous, skilled defense that our society can afford, and I'll see that he gets it," US District Judge William Young said in a June ruling. Unlike Moussaoui, Reid is represented by counsel.
The judge in the Moussaoui case, Leonie Brinkema, has declined to alter in any way the security arrangements.
Federal prosecutors say Moussaoui accepted many burdens on his Sixth Amendment rights to a fair trial when he fired his court-appointed lawyers and asserted his right to serve as his own attorney. "Are you aware that by being your own attorney, it will become more difficult for you to have access to evidence, access to witnesses, access to legal research, because of the restrictions under which you are presently housed?" asked Judge Brinkema at a June hearing.
Moussaoui answered: "Absolutely." The judge added, "Whereas, if you had an attorney ... these lawyers are able to see information, to contact witnesses, and do things that you cannot do from your cell. Do you understand that?"
"I do," Moussaoui replied.
Later in the same hearing, the judge told the defendant: "I just want to advise you that there will be ... national-security types of information, as well as sensitive airport information, that could be relevant to your defense to which you will not be able to get access. Do you understand that?"
Moussaoui answered, "I understand this."
Despite this assertion of understanding, Moussaoui filed a legal motion last week "to get access to so-called secret evidence." Moussaoui is requesting, among other items, a copy of the now-famous videotape of Osama bin Laden discussing the Sept. 11 attacks. The video was released by US officials and broadcast internationally. But, Moussaoui says, the government has since classified it as "secret," which prevents him from seeing it.
"When special administrative measures interfere with the defendant's right to prepare and present a defense, they violate the Sixth Amendment. It's as simple as that," says Michael Tigar, an American University law professor and defense attorney with experience in terrorism trials.
"He can be subject to some restriction," Mr. Tigar adds. "But the government must give him the opportunity to prepare and present an effective defense."
Others see it differently. "He has chosen to represent himself, knowing full well that he has these restrictions on him," says Paul Rosenzweig, a former federal prosecutor now at the Washington-based Heritage Foundation. "Having made his own bed, he has to sleep in it."