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The carnage of September 11, 2001 was neither a crime nor an act of war. The attack on civilians was an illegal act of war intended to destroy our American society. As such, it is beyond the scope of our criminal laws. Just as important, our goal in responding to September 11 cannot be limited to punishing the perpetrators. Foremost, the goal is prevention. The U.S. government must fulfill the nation's primary responsibility: protection of its citizens.
Because of these considerations, the Department of Justice and White House have initiated three proposals: 1) the option to try non-U.S. citizen belligerents before military tribunals, 2) detention of aliens for immigration violations and, for a reasonable time, to investigate suspicious facts of terrorism involvement, and 3) monitoring inmates' conversations with counsel when there is a basis to believe the inmate may use such communications to facilitate acts of terrorism. With proper safeguards, all are necessary tools in our response to the terrorism attacks and threats of future violence.
The Supreme Court has upheld military tribunals for unlawful belligerents charged with acts of war. The constitutionality of tribunals is not at issue. The relevant discussion is whether the policy is wise. As a former Justice Department official who supervised international terrorism cases, I know the President must have that option.
A federal trial in the United States would pose a security threat to the judge, prosecutors and witnesses, not to mention the jurors and the city in which the trial would be held. We do not have sufficient law enforcement personnel to provide these trial participants round-the-clock armed protection, the type of security still in place for the federal judge who tried Sheik Rahman in 1993.
A federal trial in the United States may preclude reliable evidence of guilt. When the evidence against a defendant is collected outside the United States (the usual situation for international terrorism investigations) serious problems arise for using it in a domestic trial. The American criminal justice system excludes evidence of guilt if law enforcement does not comply with certain procedures, a complicated system of rules not taught to the Rangers and Marines who could be locked in hand-to-hand combat with the putative defendants. For sure, the intricate procedures of the American criminal justice system are not taught to the anti-Taliban fighters who may capture prisoners. Nor to the foreign intelligence agencies and police forces who will also collect evidence.
At just what point is a soldier required to reach into his flak jacket and pull out a Miranda rights card? There are numerous evidentiary and procedural requirements of federal trials that demonstrate the folly of anyone thinking such trials should be used in wartime for belligerents. Below is a sampling of the legal questions facing the prosecutor:
" Does the Speedy Trial Act start running when the combatant is captured?
" Should the Miranda rights be given in Arabic? Which dialect?
" If the belligerent wants a lawyer and cannot afford one should she be sent at taxpayer expense to Kabul to confer with her client?
" Does the requirement that an arrested person must appear before a federal magistrate within several days to enter a plea apply?
" What happens when all the evidence showing guilt is not admitted because it was collected by a foreign police force using procedures not in compliance with United States Constitutional standards?
" What happens when all the evidence showing guilt is not turned over to the United States because a foreign intelligence agency does not want to reveal sources and methods?
" For evidence to be used against the defendant, how does the prosecution establish chain of custody, an impossible procedure on the battlefield?
In the aftermath of September 11, it is not necessarily true that an American jury would be the fairest deciders of guilt. If the judicial system thought Timothy McVeigh could not get a "fair" trial in Oklahoma, where in the United States is there an impartial jury for September 11?
Our federal investigators have been assigned a mission that requires Divine prescience: they are being asked to know when the Middle-Eastern Muslim with the box cutter and immigration violation is a potential murderer or a peaceful, loving husband.
Law enforcement is charged with preventing future attacks, a task burdened with quick decisions and instant analysis. Law enforcement is also charged with investigating the crime, a task calling for thorough, thoughtful investigation. Sometimes the two tasks occur simultaneously with the same person as the subject. Unfortunately, there are times law enforcement gets it wrong as they did with Ali Al-Maqtari. But, ultimately the system worked and he was released.
The responsibility of the U.S. government is to establish and follow procedures to ensure the detainees have access to counsel so that cases lacking evidence proceed swiftly through the process. The cure is not to release detainees back out on the streets of America when suspicious conduct remains unchecked. The solution is to make the process responsive so any irregularities can be brought to the attention of the Department of Justice or Congress, if the Department does not resolve the problem. All detainees charged with crimes should have counsel, paid for by U.S. taxpayers if appropriate. All detainees charged with immigration violations should have access to counsel and be provided lists of pro bono attorneys if they cannot afford one.
Perhaps we could find points of agreement on this issue. I suggest the following:
" The attorney-client privilege was created as integral to the Sixth Amendment right to counsel.
" The attorney-client privilege is not absolute.
" The attorney-client privilege protects only discussions about legal matters.
" If an inmate uses his or her counsel to further a crime, specifically an act of terrorism, there is no privilege for the conversation.
" If the government has credible evidence an inmate is using his or her lawyer to abet a terrorist plot it has the responsibility to learn of the crime and must act to prevent it.
" Government conduct should not chill an inmate's right to counsel for all matters legal.
The problem is how to balance the government's responsibility to protect Americans from terrorism without chilling legitimate counsel conversations. The Attorney General established safeguards to protect privileged communication where, based on credible information, there is evidence the attorney-client relationship is being misused to further terrorism. Those safeguards are as follows:
" The inmate must be subject to SAM (special administrative measures), which is a prior finding the inmate's "communications or contacts with persons could result in death or serious bodily injury or substantial damage to property that" includes "risk of death or serious bodily injury ."
" The inmate must also be detained in a terrorism related case.
" The Attorney General must receive information from the head of a federal law enforcement or intelligence agency that reasonable suspicion exists to believe a particular detainee may use communications to further or facilitate acts of terrorism.
" The Attorney General must make a separate finding of reasonable suspicion to believe the communications may be used in furtherance or to facilitate terrorism.
" Before monitoring begins, the inmate and counsel must be given notice of the monitoring.
" The monitoring personnel cannot be involved in the underlying investigation.
" The monitoring personnel shall use procedures to minimize hearing privileged conversations.
" Unless disclosure has been approved by a federal judge, the monitoring personnel shall not disclose any information except where violence is imminent.
. In addition to these guidelines, I suggest the following be considered:
" Upon notice of potential monitoring, the detainee could be given the option to change counsel to one having a government security clearance.
" Congress could pass legislation enabling a FISA like court (or, without legislation, use the FISA court) to review the finding of reasonable suspicion to believe the inmate may use communications to further acts of terrorism. No matter what judicial-type body is used, the standard should not be the more onerous probable cause of a Title III wiretap.
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