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2. The Hamdi v. Rumsfeld case
The case is now pending before the US Supreme Court. There it bears the title “Rumsfeld v. Padilla”. The hearing took place on 4.28.2004. The “Hamdi v. Rumsfeld” case was being heard at the same time. Whereas in the former case the Administration is conducting the constitutional challenge, in the latter case it is Yaser Hamdi who has been classified - just like Padilla - by the President as an enemy combatant. He, too, is an American citizen, but was not arrested on American soil, as Padilla was, but in Afghanistan by troops of the Northern Alliance in 2001 in connection with the hostilities. First taken to Guantanamo Bay , it turned out that Hamdi is probably an American citizen, born in Louisiana , who moved to Saudi Arabia with his parents as a child. He was then transferred to a military prison in Norfolk/West Virginia, but still has no access to his relatives or a lawyer. The Fourth Circuit Court of Appeals, on the basis of a ruling by the US Supreme Court of 1942,[8] saw a difference to the Padilla case which their colleagues of the Second Circuit Court of Appeals had decided: Hamdi had been arrested directly while fighting against American troops. Even if he is an American citizen, it would lie in the President’s power to classify him as an enemy combatant. Hamdi was represented by the Federal Public Defender, Frank Willard Dunham, Jr. before both the Fourth Circuit Court of Appeal and the District Court. It was also Frank Dunham who achieved the acceptance of the action against this ruling by the US Supreme Court.
Frank W. Dunham Jr . is the other “quiet hero” whose portrait is to be slipped in briefly here into the description of the judicial scenario: He is the “Federal Public Defender for the Eastern District of Virginia”, virtually the highest court-appointed defense counsel in this state. In his office in Alexandria still hangs his framed letter of appointment by John Mitchell, Attorney General under Nixon from 1969 to 1972 (sentenced in 1974 for obstruction of justice and perjury in connection with the Watergate scandal). With regard to his political attitude, Dunham is probably more a Republican, thus presumably a sympathizer of the change in leadership after Clinton. However, his defense of civic rights is completely uninfluenced by his possible political sympathies for the present Administration. It is marked by steadfastness and consistency.
3. The United States v. Moussaoui case
This leads us on to the case of Zacarias Moussaoui, a French citizen of Algerian descent, who is incarcerated in Alexandria and was for a long time regarded as being the “twentieth hijacker”. Here, too, Frank Dunham is the court-appointed defense counsel. In order not to give the impression, to even the remotest extent, that the insistence of the defense could be placed in doubt by Frank Dunham’s appointment by the court, he has called in two further independent defense lawyers, Edward MacMahon and Judy Clarke, who are paid from his budget.
Moussaoui is not an easy client. He does not talk to his lawyers; on the occasion of his first appearance when the bill of indictment was read out, he accused his lawyers just like the chairwoman of the District Court of a plot to kill him. His submissions to the court are regularly linked with insults, curses and threats, signed in each case with “Slave of Allah”. One of his first motions was aimed at dismissing his lawyers. And thus it also came about that the court had to admit his motion to defend himself.[9] The defense lawyers received the status of “stand-by counsel”, being thus initially allowed only to intervene in support where initiatives of the accused defending himself appeared sensible to them, or, in a higher instance, when Moussaoui could no longer appear himself.
The central legal dispute in the case of Moussaoui has clear parallels to the problems with which the German courts found themselves confronted in the two trials against Motassadeq and Mzoudi:
Moussaoui came into custody three weeks before the attacks on the World Trade Center on account of the suspicion of an offense against immigration regulations. After it was found out that he had also attended flying schools, in which the aircraft hijackers of September 11 had been taught, he was indicted in December 2001 and then to a further extent in July 2002 on six counts: of conspiracy to carry out terrorist acts across frontiers, conspiracy to hijack aircraft, conspiracy to destroy aircraft, conspiracy to use weapons of mass destruction, conspiracy to murder officials of the United States of America and conspiracy to destroy property. For the first four counts, the Administration is striving for the death penalty.
Moussaoui disputes that he knew of the plans for an attack on the World Trade Center.
While investigations against Moussaoui were still continuing, further persons were seized outside of the USA ,[10] to whom an important role in the preparation of the attacks on the World Trade Center is attributed. Soon after the arrests became known, Moussaoui made applications to the District Court in Alexandria for access to the potential witnesses. On 1.30.2003, Ms Justice Leonie Brinkema ordered that Mousaoui had to be granted this access, as it was certain that one of the witnesses was involved in the planning of September 11, and it could not be ruled out that his testimony would exonerate Moussaoui. The government representatives proposed “substitutions”, written summaries of the interrogations which could then be read out in the trial - a possibility that is regulated in the Classified Information Procedures Act (CIPA); whereby the reading out would be dependent on the accused’s consent. The chairwoman of the District Court refused this, as the reports of the interrogations were “unreliable” and the substitutions thus obtained were flawed in numerous aspects. After the District Court had issued an order on 8.29.2003, to also grant Moussaoui access to a further witness, and the government representatives refused this and the substitutions submitted by them appeared unreliable, Leonie Brinkema finally ordered on 10.2.2003 that all the counts of the charges, which exposed Moussaoui to the death penalty, were to be struck off; apart from this, no means of evidence might be brought into the trial and no questions asked that would bring Moussaoui into connection with the attacks on September 11, 2001. Her findings are worth reading:
“The Court has previously found that the defendant’s fundamental right to a fair trial includes the right to compel the trial testimony of witnesses, presumably in Government custody, who may be able to provide favorable testimony on his behalf. Moreover, we have also concluded that, consistent with well-established principles of due process, the United States may not maintain this capital prosecution while simultaneously refusing to produce witnesses who could, at minimum, help the defendant avoid a sentence of death.”
It was clear that the government representatives would not accept this ruling by the District Court. On 12.3.2003, there was a hearing before the United States Court of Appeals for the Fourth Circuit on the government’s appeal. The ruling was given on 4.22.2004. The reasons for the ruling are conflicting. On the one hand, the Court of Appeals acknowledges that Moussaoui had the right to summons the witnesses in question, in fact even then if they were not on American soil. So long as they were in the custody of the American authorities, they were accessible for the Court and thus also for the accused. This right also existed if it appeared probable that the witness in question would make use of his right not to incriminate himself through his testimony. The Court of Appeals also sees that the witnesses in question could support the accused in his defense. As the government’s refusal to present the witnesses would continue, the appellate court finally comes to a solution that is only comprehensible against the background of the jury system and which adheres to the provisions of the Classified Information Procedures Act (CIPA) mentioned above. Substitutions should be prepared from the summaries of the interrogation transcripts, the content of which should be prepared by the government representatives, the court and the defense together (outside of the courtroom). Provided that a “communiqué” were to be prepared in this way by those involved concerning the content of the statements, its content should be read out in the trial and made the basis of evidence, but this also only if the accused had previously consented to it being read out.
The ruling is difficult to understand even for American legal experts, particularly as the compromise between opinions drifting apart within the court is also documented in it that annexed to the decision of the panel of three judges there are two dissenting opinions on different passages in each case, thus the whole text in the respective passages seems to have come into being with differently grouped majorities. The commentary in a legal chat group: “Guesswork in black robes.”
The Moussaoui case leads on to the two cases that have been tried in Germany while dealing with the attacks of 9.11.2001. I would here like to concentrate on the Motassadeq case.
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[8] See above note 3.
[9] This took place in agreement with the adjudication of the US Supreme Court which, in a ruling of 6.30.1975, saw the “right of self-representation” as guaranteed in the Constitution (under the Sixth Amendment) (Faretta v. California, 422 U.S. 806, 821); in the meantime (on 11.14.2003) the District Court judge denied Moussaoui the right of self-defense as his applications to the court were characterized by “contemptuous language that would never be tolerated from an attorney and will no longer be tolerated from this defendant”. Source: The Washington Times of 11.15.2003.
[10] The names of the persons arrested are not expressly named here as they are officially still “classified”; the present author is adhering to this in this connection as he is also acting for the office of the Federal Public Defender for the Eastern District Virginia in the Moussaoui case.