Changing the Zip Code of the trial of Khalid Sheik Mohammed and four other terrorists from New York City to Somewhere, U.S.A. does not solve the problems a civilian trial raised in the first place. The decision does provide some justice because hundreds of millions of dollars in security costs will not be borne by the city that was the major victim of this terrorist quintet. But security and other issues do not disappear with new geography; they just move to the next location.
Try Washington, D.C., where the federal courthouse is a mere bomb’s throw away from the House and the Senate. Congress will certainly nix that possible venue. So where? Any population center with suitable courts and jails (meaning attack proof) will incur the same costs and lockdowns, including roof top snipers and street closings, that New York was planning. Any remote location, such as a military base, will cost time and money because security enhanced courtrooms and holding facilities will have to be built. Waiting for this construction clearly casts aside “swift” justice, a promise this administration made to the victims’ families when explaining a rationale for moving the trials to our shores, and which was reiterated by David Axelrod just last Sunday on Meet the Press.
In its attempt to sell us on civilian trials for terrorists, the administration claims we need to demonstrate that “we have the best criminal justice system in the world.” For just that reason illegal enemy combatants should not be tried under its rules.
Battleground conditions do not translate to federal criminal rules. There are no evidence bags stored in the foxhole to preserve the chain of custody. Any effort by a trial judge to force the terrorist’s foot into our constitutionally honed Cinderella shoe threatens valued protections that have been enlarged over two centuries of Supreme Court review, most since World War II. At the same time, a policy that includes the possibility of a civilian trial for any terrorist controls our treatment of all terrorists, thereby crippling our ability to obtain needed intelligence.
Assume that for KSM et al there are no Miranda issues. That is, the government has sufficient evidence to prosecute and convict without using any statements made sans warnings about the rights to a lawyer and to remain silent. But what about combatants captured in the future? What if Osama Bin Laden is found alive? Does he have to be given Miranda warnings just in case he could be tried in a federal court?
The administration pretends it is satisfied with the information it received during a 50 minute interview with Christmas Day bomber wanna-be Umar Farouk Abdulmutallab, leaking that he revealed more bombers were on their way. Yet, three factors that take months to develop but which are necessary for meaningful interrogation were missing: questions based on information in our files like his email intercepts, verification of his answers, and a person having a rapport with him doing the questioning. We shut Abdulmutallab up for the appearance niceties attendant to a regular criminal process when we had almost 300 witnesses to his crime so did not need his “confession.” Don’t we want to know who those other bombers are, and where and when they are coming? The fact that Abdulmutallab is considering cooperating is of no consolation. One month of valuable time has been lost. What’s more, we have put the terrorist in the driver’s seat, allowing him to bargain when and what he will reveal.
A major problem unfamiliar to non lawyers is the Brady rule, which requires the government to provide the defendant with any evidence that could be “exculpatory.” This broad term includes access to any witness and document that could directly bear on innocence, as well as information that could indirectly help, such as impeachment material revealing whether the witness was given money for appearing even if just travel expenses. Brady, a valuable tool for defense counsel, is a constitutionally based requirement. Most often, if not followed, it results in reversal of the conviction. It is usually played out pretrial where the defense requests specific witnesses and documents, and the court decides whether the requests are speculative or should be granted.
This issue brings us to the trial of Zacarias Moussaoui, much touted by the administration as an example of a successful terrorist prosecution by the Bush Justice Department. It is not. It was a three-and-a-half year legal nightmare for the prosecution. Using Brady, Moussaoui demanded to depose numerous detained enemy combatant witnesses. The judge found he was entitled access to three of them. Understandably, the government did not want to grant one terrorist the ability to question another, nor to disrupt captives undergoing their own interrogation processes. When informed it could not comply, the court denied the government the ability to argue for the death penalty.
Moussaoui also used Brady to request reams of classified documents via the Classified Information Procedure Act (CIPA). The process usually entails the government rewriting classified documents as classified summaries and giving them to a security “cleared” defense counsel. Moussaoui, the terrorist, insisted on his constitutional right to defend himself so he could personally review the classified summaries. When allowed to write his own motions, Moussaoui filed threats against public officials. When he was in court, Moussaoui ranted that he prayed for the “destruction of the Jewish people.”
The appellate court restored the death penalty. However, other appellate remands had not been completely worked out at the trial court level when Moussaoui decided to plead guilty, over his counsels’ objection. Even though Moussaoui admitted during his plea that he had communicated directly with OBL and trained at a terrorist camp, that he “knew of al Qaeda’s plan to fly airplanes into” the White House and World Trade Center Towers, that he had agreed to “participate” in that plan, and that when he was arrested he lied to the FBI because he wanted the mission “to go forward,” the jury declined to give him the death penalty.
Unsatisfied with escaping death, Moussaoui made a rare appeal of a guilty plea claiming, in part, he was forced to plead because of not having access to classified documents and fellow terrorists. It took the appellate court 78 pages to discuss the issues, holding that because he pleaded guilty he had waived those arguments. Good lesson for KSM. Go to trial because the Brady and CIPA issues await you.
Then there are the problems of a judge needing lifetime security after trying a terrorist case, a la former judge Michael Mukasey who presided over the 1993 World Trade Center bombing trial, and a jury being skewed against the prosecution for fear of retribution if voting for conviction or the death penalty.
John Brennan, White House counterterrorism adviser, was recently asked what was the downside for treating Abdulmutallab as an enemy combatant. He replied there were no “downsides or upsides.” Brennan is misinformed. Cost, security, and abuse of our criminal procedures are downsides for treating enemy combatants as regular criminals. Guantanamo has secured facilities. Military tribunals are constitutional. There is no downside for using them.
Victoria Toensing, former deputy assistant attorney general (criminal division) and chief counsel for the Senate Select Committee on Intelligence, is founding partner of diGenova & Toensing.