This is a partial transcript of The Big Story With John Gibson, September 25, 2003, that has been edited for clarity.
JOHN GIBSON, HOST: Are we fighting terror or not? Some legal gamesmanship in the Zacarias Moussaoui (search) case, the government now wants to drop the charges. Here to explain how this works, FOX News senior judicial analyst, Judge Andrew Napolitano. What's this all about?
JUDGE ANDREW NAPOLITANO, FNC SENIOR JUDICIAL ANALYST: Well, about a month ago, the trial judge ordered the government to produce Ramzi Binalshibh (search). Why? Because the Constitution says when you're being prosecuted, you can compel people to come in the courtroom to exonerate you.
GIBSON: He knows how Sept. 11 was cooked up
NAPOLITANO: [The judge] read a transcript of [Moussaoui's] interrogation. She said, “You know what, if a jury heard this, it might exonerate [Moussaoui].” The government declined to produce [Binalshibh], so [the judge] said to the defense lawyers, “What should I do to force [the government] to produce them?”
Defense counsel said, “Dismiss the case.” And the government shocked everyone yesterday. It was revealed today, when it said, “You know what? We think the case should be dismissed.” Now there are two theories here.
GIBSON: They won't let him go.
NAPOLITANO: No. Either they want the case dismissed by [this judge] so that it can go to the Fourth Circuit Court of Appeals, the most conservative in the nation, which they believe will reinstate it and maybe — just maybe — send it to another trial judge. Or they want to send him to Guantanamo Bay, where he would presumably be tried in a military tribunal and the refinements of constitutional protection would not be there.
GIBSON: Okay. But he's right on the bubble. I mean, if they dismiss these charges, the situation actually could get a whole lot worse for him. He could find himself before a military tribunal, which has the power to kind of run him through very quickly and stand him on the floor of a firing squad.
NAPOLITANO: He will not find judges as receptive as [this judge]. Again, we do not know exactly what the military tribunal's procedures will be because we haven't used a military tribunal in this country since 1943. And there were two sets of procedures promulgated. One actually gave the defendant a fair amount of protections, among which is the right to bring into the courtroom those who could exonerate you. But it's almost inconceivable that military officers would order the Justice Department to bring Ramzi Binalshibh in the courtroom...
GIBSON: OK, apparently Ramzi Binalshibh would say, “Look, Moussaoui was too much of a nut for us to use. We thought he was a loose cannon. We wanted him to have nothing to do with Sept. 11.” Meanwhile, Moussaoui is standing up saying in court, “I'm an Al Qaeda terrorist. I am here for the destruction of the United States, and I wanted to fly one of those planes into the building.”
NAPOLITANO: ”But I had nothing to do with the plans.” That's his defense. Now, Ramzi Binalshibh has been interrogated for months and months and months. The judge ordered a transcript of those interrogations and she read them and said in open court, “You know what, if this guy says to a jury what he said to the interrogators, I think [Moussaoui] very well will be acquitted. Therefore, [Moussaoui has] the right to compel the government to bring him into the courtroom.”
The government is not stupid. The government strongly believes, and with good basis, the Fourth Circuit Court of Appeals will reverse this decision. I think they just want to get it over with.
GIBSON: All right. Judge Andrew Napolitano, thank you as always.
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