WASHINGTON – Confounding Senate Democrats who have questioned President Bush's decision to use military tribunals, Deputy Defense Secretary Paul Wolfowitz told a Senate panel Wednesday that the Justice Department never discussed with the Defense Department the option of trying Zacarias Moussaoui, the first person indicted in the Sept. 11 attacks, in a military court.
Wolfowitz told the Senate Armed Services Committee that senators should take comfort in the decision to send Moussaoui to a civilian court since they were fearful of the military abusing its court privilege in the first place.
But Senate Democrats said Moussaoui, charged with six felonies connected with the attacks on the World Trade Center and the Pentagon, is the perfect case for a military tribunal.
"What greater violation of the laws of war could there be?" said Sen. Joseph Lieberman, D-Conn. "If we will not try Zacarias Moussaoui before a military tribunal, who will we try in a military tribunal?"
"It's hard to imagine that in a matter that fits the military tribunal order the way that Mr. Moussaoui's case apparently seems to fit it that you weren't consulted," Armed Services chairman Sen. Carl Levin, D-Mich., said. "I'm kind of amazed you weren't consulted" by the Justice Department.
Senate Democrats said that if Moussaoui is not tried in a military court, then it will be harder to justify the court's use in future prosecutions of accused terrorists, especially those indicted on charges unrelated to the World Trade Center and Pentagon attacks.
The Justice Department said Tuesday that Moussaoui will be tried in a federal courthouse in Alexandria, Va.
Attorney General John Ashcroft, who is in Europe to convince his counterparts to extradite suspected terrorists who may face the death penalty in U.S. courts, said Moussaoui worked with bin Laden associates to carry out the attacks and his activities mirror those of the 19 hijackers — he attended flight school, opened a bank account with cash, joined a gym, purchased knives, bought flight deck videos and looked into crop dusting planes.
Four of the charges against him carry the death penalty.
Senators have been debating whether Bush's order to possibly send foreign terrorists or war criminals to military tribunals instead of federal courts is a denial of due process. Ashcroft attended a Senate hearing last week to respond to their questions, but said he could not answer inquiries related to the specifics of the military tribunals because they were being developed under the jurisdiction of the Defense Department.
Wednesday, Wolfowitz and Defense Department lawyer William J. Haynes II said that they could not add any details of the courts because Defense Secretary Donald Rumsfeld has not yet decided the guidelines for them.
"This is an illustration on how carefully the president plans to employ this tool he has created," Haynes said, adding that there's a logistical problem with sending Moussaoui's case to a court that doesn't yet exist.
The administration has said on several occasions that the court will provide defendants a full and fair trial, but that military tribunals are necessary to protect classified evidence that might not be allowed in civilian courts.
GOP senators said they were confident that Rumsfeld would come up with military tribunal regulations that would be fair and just, and that Congress should wait until those regulations are issued before criticizing.
"The American people trust the president," said Sen. John Warner of Virginia, the top Republican on the committee. "The question is now: Does the Congress trust our president to use his constitutionally-granted power?"
The Associated Press contributed to this report.