The Government agreed with standby lawyers for Zacarias Moussaoui today that criminal charges should be dismissed in the case.

Prosecutors claim they made the motion so that they can appeal the Court's prior ruling ordering the Government to make three captured al-Qaeda members available for an interview by Moussaoui.

The Fourth Circuit Court of Appeals has already heard legal arguments in the case, but declined to rule until Judge Brinkema decides what sanctions to impose on the Government for failing to comply with her order. The penalty could range from dismissal of the charges to preventing the Government from seeking the death penalty.

We think the Government wants to avoid being told it can't impose the death penalty in the federal case. It would rather the charges were dismissed first. Otherwise, as a public relations matter, if the Administration later declares Moussaoui an enemy combatant and tries to get a death verdict from a military tribunal, it will be viewed as bad form. The decision will be criticized world-wide. Think about it. The leader of the free world tries an individual and seeks to execute him in a secret proceeding after a judge in an open proceeding declares he is being treated unfairly.

As to the appeal,

The government said in the motion the issue before the court is whether the constitutional right to access to favorable witnesses applies to an enemy combatant "seized and held abroad during armed hostilities."

We have little doubt that the Government is proceeding under the theory that one way or another Moussaoui will be moved to a tribunal proceeding. It wants as little interference with that as possible.

We hope Judge Brinkema stops the Government from seeking the death penalty in the federal trial. How can we send a man to his death when we don't allow him the opportunity to obtain and present evidence to show he isn't guilty of the very offense carrying the death penalty?