EDITORIAL
Fairness must prevail in Moussaoui case

A clash in federal court between a terrorism defendant's constitutional rights and national security imperatives must not be allowed to sidetrack the ultimate object: justice.

Attorney General John Ashcroft may be justified on security grounds in deciding to defy a federal judge and bar testimony from an al-Qaida prisoner for the terrorism trial of Zacarias Moussaoui.

Ashcroft says allowing Moussaoui to depose the prisoner, Ramzi Binalshibh, "would necessarily result in the unauthorized disclosure of classified information" and that "such a scenario is unacceptable to the government."

The government says the accused, Moussaoui, the so-called "20th hijacker," would have taken part in the attacks of Sept. 11, 2001, but for suspicions he raised at a flight school he was attending in Minnesota. He was arrested on immigration charges before the attack.

Moussaoui admits he's an al-Qaida member, but says he was never involved in the 9-11 plot. He says Binalshibh, who is suspected of coordinating the attacks, would testify to that effect.

Moussaoui's argument isn't implausible. Authorities have been saying that al-Qaida has planted other, "sleeper" cells in the United States.

If a deposition from Binalshibh were allowed in Moussaoui's trial, it seems likely a jury might be less inclined to give him the death penalty, although he presumably would still face life behind bars.

Ashcroft's defiance of the federal judge presiding in the Moussaoui case is likely to result in dismissal of all or part of the case. Experts think Ashcroft will appeal any sanction to the Fourth Circuit Court of Appeals and the U.S. Supreme Court.

But administration officials have also said for months that if Moussaoui's indictment were dismissed, his prosecution would almost certainly be moved to a military tribunal, where he would have fewer rights to gather testimony from witnesses like Binalshibh.

If Moussaoui, a French citizen, is moved to a tribunal, it is bound to appear that the government had switched venues just to obtain one more favorable to its desire to obtain the death penalty.

Indeed, the new tribunals, a shadow court system outside the reach of either Congress or America's judiciary and answerable only to President Bush, are shaping up as the antithesis of the rule of law, which the United States was founded to uphold.