For months the Post has been suggesting that federal prosecutors seek a dismissal of the federal grand jury indictment against Moussaoui and then try him before a military tribunal. In fact, as recently as September 29, in an editorial entitled “The Moussaoui Mess,” the Post wrote, “We have urged that the government solve the immediate problem of Mr. Moussaoui’s case by trying him before a military tribunal....”

However, on October 4 (less than a week after its September 29 editorial), the Post published a new editorial entitled “A Way Out,” in which it suggested that the government should not appeal Judge Brinkema’s ruling and instead should proceed to trial in the federal court, proceeding under the constraints of Judge Brinkema’s sanctions. While the Post didn’t expressly state that it was abandoning its position favoring a military tribunal for Moussaoui, that would seem to be the logical inference to be drawn from its recommendation that the government proceed to trial in Judge Brinkema’s court. (Yesterday — October 7 — the government appealed Judge Brinkema's order to the Fourth Circuit Court of Appeals, thereby rejecting the Post's advice not to appeal the order.)

Of course, the advantage of military tribunals, from the standpoint of the government, is that prosecutors don’t have to concern themselves with such constitutional niceties as the presumption of innocence, due process of law, compulsory process of witnesses, right to counsel, right to confront witnesses, habeas corpus, or appeals. The military tribunals can quickly rush to judgment and execution without the defendant’s making a “mess” of things by ardently insisting on his innocence and fervently fighting for his life. That’s in fact why military tribunals are being used in Cuba, both on the Castro side and the Bush side of the island.

Thus, it’s gratifying to read the Post’s concluding paragraph in its October 4 editorial: “The government now has an opportunity to resolve the Moussaoui case under favorable terms in federal court, having suffered minimal embarrassment and having protected the national security interests it insists are vital. Zest for execution should not cause the Justice Department to pass it up.”

The government's decision to appeal Judge Brinkema’s ruling is beside the point. What’s important is that in criminal prosecutions we require the feds to operate under the Constitution and the rule of law, which entails federal court jurisdiction, rather than military jurisdiction, over federal criminal prosecutions. If we permit the government to deliberately violate the Constitution, set up a parallel kangaroo criminal system, and knowingly disobey federal court orders, then no one in America is safe from that sort of tyranny. That’s why every single American should be grateful that the Framers instituted an independent judiciary with the power to enforce the Constitution and the Bill of Rights against the executive branch. Americans should also be grateful that Judge Brinkema has had the courage to do so in the case of an extremely unpopular defendant and to resist the Justice Department's extreme pressure to abandon constitutional principles in the name of the government's “war on terrorism.”

The Post’s editorial board has obviously suffered significant confusion and perplexity over the Moussaoui case. Let’s hope that the Post has permanently abandoned its position favoring a military tribunal for Moussaoui and now continues to stand fast for the Constitution and the American system of government.

For more background and information on the importance of the issues raised in the Moussaoui case, see the following FFF original articles and articles that have been posted in our FFF Email Update:

FFF articles:

Are Military Tribunals Worth Dying For? (August 2003) by Jacob G. Hornberger

Crossing the Rubicon (July 2003) by Jacob G. Hornberger

Our Lives and Liberty Turn on Moussaoui (June 2003) by Jacob G. Hornberger

Why Not Send Moussaoui to Havana and Be Done With It? (April 2003) by Jacob G. Hornberger

Bush’s Reluctant Embrace of Civil Liberties (May 2002) by Jacob G. Hornberger

U.S. Justice in the War on Terrorism (May 2002) by Jacob G. Hornberger

Civil Liberty and the State: The Writ of Habeas Corpus (April 2002) by Richard M. Ebeling

Offsite articles linked from the FFF Email Update:

Military Tribunals Challenge America’s Legal Tradition (September 2003) — Detroit News editorial

Jose Padilla: No Charges and No Trial, Just Jail (August 2003) by Robert A. Levy

Bush, Ashcroft Are Robbing Suspects of Civil Rights (August 2003) by The Advocate

Joe Padilla’s Lawyers: Fighting for Principle (July 2003) by Elaine Cassel

No Choice but Guilty (July 2003) by Michael Powell

Enemy Combatant Vanishes into a “Legal Black Hole” (July 2003) by Paula Span

The Trial of Zacarias Moussaoui (July 2003) — New York Times editorial

Terror Suspect Stashed in S.C. “Black Hole” (June 2003) by Shannon McCaffrey

Into a Black Hole (June 2003) by Joanne Mariner

It Was a Good Day for the Sixth Amendment (March 2003) by the New Jersey Record

Detaining “Enemy Combatants” (January 2003) New York Times editorial

Mr. Hornberger is founder and president of The Future of Freedom Foundation. Send him email.