"The White House is weighing a proposal to abandon the Justice Department's prosecution of Zacarias Moussaoui in a federal court, remove him from the United States and place him before a military tribunal in Guantánamo Bay, Cuba, administration officials say."

"They said the proposal to shut down the civilian prosecution of Mr. Moussaoui, the only person charged in an American court with involvement in the Sept. 11 attacks, reflected a growing fear in the government that legal problems faced by the Justice Department in pursuing the case might be insurmountable."

This is another end-run around justice. The White House and the Pentagon are making up the rules as they go along. They are afraid, as we predicted they would be months ago, that they will have to make Ramzi bin al-Shibh, arrested in Pakistan months ago and held in secret detention ever since, available to Moussaoui to interview. Moussaoui's Indictment is replete with references to bin al-Shibh as a planner of the Sept. 11 attacks. He could have critical information that would show Moussoui was not involved in the September 11 attacks. While Moussoui has admitted in Court that he is a member of Al Qaeda, he has insisted from the beginning that he had nothing to do with the attacks. We think the information revealed to date supports his position.

Rumsfeld and the military think it would be better to drop the federal action, move Moussaoui to Guantanamo Bay, Cuba, and try him under Bush's proposed military tribunal rules. Moussaoui, as a non-U.S. citizen, may be subject to such proceedings.

We believe the Moussaoui case has been mishandled since the beginning. As Seymour Hersh posited in an excellent New Yorker article back in September, Moussaoui should have been treated as a witness, not a defendant.

We stated then and continue to believe that:

"... what if the Government has to choose between Moussaoui and Binalshibh? Binalshibh seems to be far more critical to the Government in terms of his being able to supply information about the attacks. Moussaoui has been nothing but a thorn in the Government's side since his case started."

"Maybe a compromise could be worked out where the Government drops the death penalty request against Moussaoui if Moussaoui pleads and agrees to a life sentence thereby avoiding the need to call Binalshibh at all."

"Whatever happens, it should occur publicly. The Government should not be allowed to hide behind a veil of secrecy in this case as it has with Padilla and Hamdi and the other detainees."

Back to today's New York Times article:

The Pentagon and the C.I.A. prefer to keep suspected terrorists in isolation and subject to interrogation, without access to defense counsel.

"Civilian and military lawyers said it was unclear whether the court-appointed lawyers assigned to advise Mr. Moussaoui would be able to prevent the administration from moving him to Cuba."

"A decision to abandon the Justice Department's case could create a predicament for Mr. Moussaoui's court-appointed civilian lawyers, who would have to decide whether they had any standing to continue to represent him and whether they wanted to try to keep him from being transferred to military custody."

"Criminal defense lawyers not associated with the case suggested that the court-appointed defense team might try to press Judge Brinkema to block Mr. Moussaoui's transfer until the federal courts decided the constitutionality of the government's use of the "enemy combatant" designation for Qaeda figures."

"The issue has been the subject of a variety of court challenges since Sept. 11, most prominently in a case involving the Justice Department's efforts to deny a lawyer to Yasser Esam Hamdi, an American-born Saudi who was captured on the battlefield in Afghanistan and is being held incommunicado in a Navy brig in Virginia."

Frank Durnham, the Federal Defender in Virginia who serves as one of Moussoui's standby counsel, said the dismissal of the federal case will be a win for Moussaoui and that there may be nothing the defense can do to thrwart the move from federal court to military tribunal. We don't see how it could be a "win" if the result is that Moussoui will be tried in a tribunal with far fewer rights than those accorded in a federal court trial.

Meanwhile, Moussaoui's mental health is again at issue. His mother is pressing for a new psychiatric examination. "Every time I see him, he is deteriorating — getting worse and worse," Mrs. el-Wafi said, speaking through an interpreter. "He can't think rationally. He doesn't talk rationally. He keeps saying, `I am going to be out very soon.' "