Has logic completely escaped the Wall Street Journal's editorial board?

Consider the court order for the government to produce Ramzi bin Alshib for a deposition in the case against Zacarias Moussaoui. According to the New York Times, the Justice Department has indicated that it will refuse to produce bin Alshib because it is concerned that permitting him to be deposed by Moussaoui "would necessarily result in the unauthorized disclosure of classified information" and that "such a scenario is unacceptable to the government.". [link] The likely penalty for non-compliance is an order dismissing the charges against Moussaoui. And the likely result is that the government bring charges against Moussaoui in a military tribunal, where the Constitutional protections he is entitled to will be far fewer.

In response to this mess, the Journal wrote an editorial entitled "A Military Commission for Moussaoui" (7/16/03) [link]. The essence of the Journal's view on the matter is summed up in the first sentence: "It's clear that President Bush made a mistake when he decided to assign Zacarias Moussaoui, the alleged '20th hijacker,' to trial in a federal civilian court." The bulk of the editorial is devoted to proving why the assignment of Moussaoui's case to a civilian court was wrong, but is best summed up by a sentence that is conveniently misquoted in a block quote in the center of the editorial: "the regular justice system is not up to the task of trying terrorist suspects." (the block quote reads, "Civilian courts aren't up to trying most terrorist suspects". Note the insertion of the word "most", which fundamentally changes the meaning of the quote.)

The problem with the Journal's argument (and by extension, the right's argument) is that it doesn't make sense. Let me demonstrate:

"As we know from captured al Qaeda training manuals, recruits are instructed in how to manipulate the Western legal system if they are captured. We can assume that Moussaoui was an A-plus student"

In other words, anything that Moussaoui does to assert and enforce the rights contained in the Constitution must necessarily be attempts to manipulate the system. But that argument relies on a false assumption that because Moussaoui has admitted his allegiance to al Qaeda generally, he must be using al Qaeda training in this case specifically. In the end, there's no way to defend against that charge, since to defend against it would be to give further "proof" that Moussaoui is subverting the legal system and therefore, a terrorist. The logic ends up being circular.

But let's let that pass for a moment. The Journal goes on to say that

"A defendant -- any defendant -- has the right to access all information that might help his case. This is an essential part of American justice. To tinker with it runs the risk of distorting it to the point of long-run damage.

Where to begin unpacking the logical flaws in that statement? Hmm, well, let's start with "any defendant". If "any defendant" has the right to access all information that might help his case, then Moussaoui should have that right too, yes? After all, as the Journal acknowledges, this is an essential part of "American justice", and Moussaoui is a defendant in said system, right?

The Journal continues:

"The lesson from the Moussaoui trial is not to give him what he asks for. Rather the lesson is that the regular criminal justice system is not up to the job of trying terrorist suspects. Terrorists who would kill thousands of American civilians aren't ordinary criminal defendants and shouldn't be treated as such."

And now we're back to circular logic. First, note that in the last sentence, the Journal has absolved the government of its burden of proof. This trial is about whether or not Moussaoui was the "twentieth hijacker", or as the Journal puts it, whether Moussaoui is a "terrorist who would kill thousands of American civilians". In other words, to find him guilty, the government must prove beyond a reasonable doubt that Moussaoui is not merely a member of al Qaeda, but that he was involved in the plot to bring down the World Trade Center. But the Journal would, before trial, use the fact that he is a "terrorist who would kill thousands of American civilians" to justify the fact that Moussaoui is not an "ordinary criminal defendant and shouldn't be treated as such."

Notice as well the Journal's sweeping statement that "the regular criminal justice system is not up to the job of trying terrorist suspects." To start with, I'm not aware of the clause in the Constitution that talks about "regular criminal justice systems" and "other criminal justice systems", so I'm not sure I get the basis for that distinction. Moreover, where is the support for this statement? For one thing, the "regular criminal justice system" managed to try and convict the criminals responsible for the 1993 WTC bombing, and were competent to handle the indictment and subsequent guilty plea of John Walker Lindh. For another, it seems to me that Judge Brinkema and the Fourth Circuit are more than up to the job, since they have managed a difficult case with a difficult defendant this far; if you ask me, it's the Justice Department that seems to be having trouble with well-settled principles of Constitutional law, not the courts.

In the end, the one aspect of the editorial that I find curious is this statement:

"The evidence against [Moussaoui] is strong, mostly unclassified and could have been produced in open court."

If that's the case, what is all the fuss? Give the man what he wants, move the case forward, and if the man is as guilty as the government and the Wall Street Journal say he is, let them get their conviction and end this mess. After all, isn't that what we're really after?