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Friday, September 26, 2003
Take a look at this post at National Review's The Corner:

I don't know who Rick Brookhiser is, but I don't think I've seen a dumber thing said in public discourse this year. First, is he advocating that you should be able to shout "fire" in a crowded theater? If he is, he's advocating a version of the First Amendment that even the most absolutist First Amendment zealots don't support.

Second, the right to compel the appearance of witnesses to testify in your defense is guaranteed by the plain language of the Sixth Amendment. And the reason it is protected is dreadfully obvious-- without that protection, innocent people could go to jail, or even be executed, if the government prevented them from calling the witnesses who could exonerate them.

Specifically, suppose an Al Qaeda leader says Moussaoui was not involved in the 9/11 plot. Isn't that evidence that the jury must hear in determining whether to convict Moussaoui? I realize that an Al Qaeda terrorist might have a reason to fabricate such testimony-- but that's precisely the sort of thing that we let juries determine in this country. A jury's function is to ferret out who is telling the truth and who is lying.

Brookhiser refers to Judge Brinkema's rulings allowing Moussaoui's lawyers to question these Al Qaeda leaders as allowing Moussaoui to communicate with other terrorists. This is, at best, a gross oversimplification. First of all, Moussaoui's lawyers, not Moussaoui himself, would be doing the questioning. The questioning would be in the presence of government officials and prosecutors who could cut it off if it appeared that messages were being sent. Indeed, the judge could very well require that the questions be submitted in advance for review. (If the Ashcroft justice department were more interested in actually giving Moussaoui a fair trial and less interested in railroading him through the system, they would agree to this sort of procedure rather than blatantly flouting Judge Brinkema's orders and daring her to dismiss the case.)

And in any event, exactly what harm would transpire if Moussaoui did manage to send a coded message to his co-conspirators? They, after all, are in custody as well. They wouldn't be able to do anything with that message other than sit in the bowels of Bagram Air Force Base while thinking it over.

There are thoughtful arguments on the issue of how much process is due captives in wartime, what is the correct division of labor is between the military and civilian justice systems, how is the government supposed to handle suspected terrorists who might be acquitted if they were tried, etc. And then there are people like Mr. Brookhiser, who don't trouble themselves with such thoughts and just assume that any ruling enforcing an important constitutional right in a terrorism case must by definition facilitate the goals of the terrorists.

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