“The 6 Amendment give the right to an accuse to see evidence against him,” wrote Zacarias Moussaoui to a federal judge. The Sixth Amendment has emerged as a major obstacle to Justice Department efforts to prosecute Moussaoui, the Christian Science Monitor says. It highlights the difficulty of waging a war on terrorism from two contradictory perspectives at the same time. Some terror suspects are treated as criminal defendants, deserving the protections of the U.S. Constitution, while others are held as battlefield prisoners, with few rights, if any.
It comes down to a dispute over whether to rely primarily on the tactics of the courtroom or those of the battlefield. So far, the administration has used both, with inconsistent, confusing – and controversial – results, analysts say. “This is the problem when you start to blur the areas of the law of war and our normal criminal justice system,” says Scott Silliman of the Center on Law, Ethics, and National Security at Duke University Law School in Durham, N.C.
Administration lawyers say the president has the power as commander in chief in time of war to take action against those he deems “enemy combatants.” Civil libertarians disagree. I. Dean Ahmad of the Minaret Freedom Institute in Bethesda, Md., says if that is true, there is nothing to prevent the administration from designating anyone an enemy combatant. “If you can’t win in the civilian court, just call them an enemy combatant,” he says. “It is a slippery slope that would leave no American citizen protected.”