The devil's in the details

On Thursday, the 4th Circuit Court of Appeals reinstated the heart of the government's case against Zacarias Moussaoui, the self-confessed Osama bin Laden loyalist accused of involvement in the 9/11 attacks.

Previously, the District Court had ruled the government could neither seek the death penalty nor present evidence related to 9/11 as a penalty for its refusal to produce three witnesses in its custody which Moussaoui said could demonstrate his innocence.

The Circuit Court has tossed out that penalty but in a partial victory for the defense did say that the three could provide written statements in a form to be determined.

Does all that seem oh so wonderfully reasonable, fair, equitable, cleverly balancing "national security" and "fair trial?" Well, I suppose that's what we're supposed to think and is probably what the members of the Circuit Court do think.

But -

Robert Precht, assistant dean for public service at the University of Michigan law school, called the ruling "a very pragmatic decision. The court of appeals affirms that the Constitution applies in terrorism cases.

"But having said that, the court said that ... we don't have to impose these severe penalties for the government's failure to abide by the Constitution."

Precht, that is, also praises the decision - but inadvertently reveals the core of the danger we face: There should be no penalty on the government, he says, for violating the Constitution. Oh, it still applies, and oh, yes, indeed, courts can order the White House to obey it, but if they refuse? :shrug: No penalty.

No penalty. No penalty for ignoring court orders. No penalty for violating the Constitution. No penalty.

Sleep well.