Those tempted to side with the so-called human rights groups agitating against the Bush administration for preventively detaining enemy combatants at Guantanamo will want to pay attention to yesterday’s developments in the case of United States v. Zacarias Moussaoui aka Shaqil, aka Abu Khalid al Sahraw. This is a case in which the Bush administration chose to let the Justice Department rather than the Defense Department take the lead, launching an ordinary criminal prosecution of a terrorist. This is the strategy for which President Bush derided Senator Kerry for during the campaign.

It’s a law-enforcement approach, of the kind normally used for, say, a shoplifter or a rapist. It was used to deal with, according to Moussaoui’s own admission of facts in the case, a person who was “personally selected” by Osama bin Laden in Afghanistan “to participate in the operation to fly planes into American buildings.” He was arrested in Minnesota on August 16, 2001, in possession of two knives and flight manuals for the Boeing 747 model 400. Yesterday, the federal judge in the case, Leonie Brinkema of the Eastern District of Virginia, a Clinton appointee, halted the death penalty phase of Moussaoui’s trial. Moussaoui had already pleaded guilty to conspiracy.

The cause for the halt was that government lawyers had violated Judge Brinkema’s rules by discussing trial events with witnesses before they took the stand. Now the death penalty may be off the table entirely. The question to ask is, what if the government’s error had taken place in the guilty-or-not-guilty phase of the trial as opposed to in the sentencing phase? Would the constitutional protections of due process mean that the so-called Fifth Pilot of the September 11 attacks would have walked away free to plot or execute another attack on America? Such are the risks attendant in bringing terrorism cases to criminal trial as opposed to just sticking the suspects on Guantanamo for the duration of the war.

Now, one can argue that the error here wasn’t bringing this case to a criminal trial to begin with but a failure of the government to lawyer it well after having made the decision. Or that the error was bringing the case in the Eastern District of Virginia rather than in the Southern District of New York, where we seem to have a particularly savvy set of prosecutors. The Supreme Court has ruled, in Rasul et al. v. Bush, that the enemy combatants must have some recourse. Congress, which is fully capable of asserting its authority (ask Dubai), has failed, at least so far, to assert up its Constitutional authority to suspend habeas corpus in wartime. But if some superannuated judge lets a man like Moussaoui walk away from the gallows on a technicality, that’s the kind of thing people are going to start talking about.