Coincidence? Perhaps so.

Today, two seemingly unrelated news items illustrated the complexity of the war on terror. But first, a little background. Many of you will recall that our nation was attacked by a vicious enemy on September 11, 2001. The enemy, as you probably remember, was Al Quaeda.

Turns out that one member of the conspiracy, Zacarias Moussaoui, lived. He was in jail on the fateful day, having been arrested earlier in Minnesota where he was taking flying lessons. Called the twentieth hijacker, he was apprehended and pled guilty to six felony counts, three of which expose him to the death penalty. He is on trial in Virginia, and the issue there is whether or not he should receive the ultimate sanction.

Meanwhile, just a little to the north, Senator Russell Feingold, (D-WI) has introduced a Resolution to Censure the President for his illegal use of wiretaps on people within the United States. The Attorney General appeared in the Senate Intelligence Committee and defended the domestic spying program but his defense was so weak that it raised more questions than it answered. I wrote about it here [ McCain: Bush Does Not Have “The Legal Authority To Engage In These Warrantless Wiretaps”] and here [Alberto Gonzalez: Criminally insane or just another Republican?] and here [Orin Hatch: Intellectually Dishonest or Just Plain Ignorant?]

In particular, I discussed the argument of Senator Ted Kennedy (D-MA) which went something like this: If you build cases against terrorists on illegally obtained evidence, you run the risk that the case will be dismissed as “fruit of the poisonous tree.” I referred to this as the “Get our of jail free card.”

At the time that this argument was presented, it all seemed so theoretical. Who would have thought that we would really dismiss a case against an Al Quaeda member because the Government screwed up?

As it turns out, we just learned that the case against Moussaoui has been seriously compromised by government misconduct. The judge in that case angrily said she might spare him the death penalty, according to a report in the New York Times. Why might she take such a rash step? “In all my years on the bench, I’ve never seen a more egregious violation of the rule about witnesses,” Judge Leonie M. Brinkema said.

It is the general rule that witnesses in a trial are excluded from the courtroom except when they are testifying. This is so they do not base their testimony on the testimony of witnesses who precede them. This rule was invoked in the Moussaoui trial, and extended to include transcripts of witness testimony. But that did not stop government lawyers from giving transcripts of testimony and opening statements to witnesses.

When Moussaoui’s court-appointed lawyers found out about this they promptly made a motion to dismiss the case and impose a sentence of life imprisonment. As I write this, the defense motion is under advisement.

This comes on the heels of another serious breach of the defendant’s rights. After Mr. Moussaoui was arrested, he asserted his right not to be questioned without a lawyer present. When an arrestee does that the prosecution is not allowed to comment on his silence. But that didn’t stop the prosecutor, David Novak, from asking a witness whether Mr. Moussaoui had reached out from the local jail to tell him what he knew about Al Qaeda in the immediate days before 9-11. This prompted the first motion for a mistrial which Judge Brinkema denied.

However, she clearly had it in mind when the new government misconduct came to her attention. “This is the second significant error of the government affecting the constitutional rights of this defendant,” she said. “More importantly, it affects the integrity of the criminal justice system in the United States.”

But how does this relate to Senator Feingold’s proposed censure in the Senate? Senator Feingold’s motion tries to make the point that when the government does wrong, there are consequences. If it is some low-level prosecutor, the consequence may be that a terrorist is spared the punishment provided for by law. If it is the President of the United States, the consequence may be a climate of lawlessness, a disrespect for the law and, to borrow Judge Brinkema’s phrase, it may affect the integrity of the criminal justice system.

The war on terror is a struggle to win the hearts and minds of the millions for whom the message of Ossama Bin Laden resonates. The battle in Iraq is an attempt to instill a system of law where once only tyrannical totalitarianism held sway. When the American government shows by its activities, that respect for the law is just a charade, well, it can’t help.

“… and tell ’em Big Mitch sent ya!”