Challenge---Terrorist Trials

Terrorism Trials and the Constitution


“Everyone has the right to speak, but you must earn the right to be heard”.


Howard, my friend, you have more than earned that right. When I read your “musings”, I do not always agree completely , but I always give careful thought, not only because you have “earned” the right to have your words carefully considered, but because of our friendship and my profound respect for your great contributions. That said—here is a brief memo on my ideas respecting the potential terrorist trials in the United States Federal District Courts. This memo is, at least in part, based on trial experience of over forty years in the California trial and appellate courts, both state and federal.

In the last week, confusion again reigns on the anticipated location for the trial(s). Mayor Bloomberg, alas, has proclaimed, ipse dixit*, “[N]ot in my backyard.”

In doing my research for this memo, I discovered many writings discussing the many issues involving the detainee cases. Many commentators make bold proclamations that the U.S. District Courts can well handle the trials, and foresee no serious difficulties; others, the opposite. However, I find no proclamations from trial lawyers, who, after all, will have to try these cases. There is no recognition (that I found) of the myriad difficulties and surprises that always arise in major litigation where there are established rules of procedure, contrary to the detainee cases where so little guidance exists. Those surprises can cause some real “heartburn” as well as profound embarrassment.

We have only one US Constitution, we have one set of rules that define and control the conduct of criminal trials in the United States District Courts: the Federal Rules of Criminal Procedure. Those Rules, inter alia**, govern the trials, in the United States District Courts of persons accused of federal crimes. They are promulgated foundationally from Article III of the Constitution, and the Fourth, Fifth and Sixth Amendments to the Constitution (the Bill of Rights). In those Amendments providing for the rights of accused, their efficacy is not limited to American Citizens or others in the country lawfully; the rights extend to all “persons”. For example, words found in the Fourth Amendment: “The right of the people to be secure…” in the Fifth Amendment: “No person shall be compelled ...nor be deprived of life, liberty or property…” and in the Sixth Amendment: “In all criminal prosecutions the accused is…” It therefore follows that once the Guantanamo detainees are in the United States criminal justice system, the guarantees of the Constitution attach--no matter how repugnant that may seem to the American people.

The purity of the law when it works the way the framers contemplated at the time of the ratification of the Constitution is truly magnificent. But, did the framers contemplate terrorists, or terrorists flying airplanes into buildings in New York City? I doubt it, but I do think they contemplated trials of non-citizens for criminal conduct. Illustrating that intent is the 18th century trial of the British soldiers for the killings of American men and boys in the so-called “Boston Massacre”. One of the founders, John Adams, defended the British soldiers, and all were acquitted--a very unpopular decision at the time. An example that “hard cases can make bad law”, but not in the “Boston” instance.

Interesting conflicts exist because of the dichotomy of belligerent versus criminal defendant. This dichotomy may prove a major impediment to securing convictions in the federal courts. What the government can do to obtain information with respect to a prisoner of war is much broader then what government is allowed to do in the appropriate processing of a criminal defendant in a civilian court.

Frequently, President George W. Bush commented: “his primary responsibility as the President was to protect the American people”, or words to that effect. It was, and is, a popular statement, and probably received mass approval. However, what form should the protection take? The Presidential oath of office, does not include an express phrase “to protect the American people”, however, the oath does contain the phrase, “preserve and protect the Constitution of the United States”. Which raises the question: Does the preservation and protection of the Constitution provide the best assurance for protection of the American People? Is it an appropriate function of the government to violate (at worst), or disregard, (at best), the Constitution to solve an immediate, anticipated and widespread catastrophe? The consequences of “skirting” the Constitution (if the Federal Courts allow such) is that the disregard of the Constitution may have a profound and long lasting impact on the continued viability of this most hallowed document. We cannot have a constitution
of convenience.

The detainee cases conducted in the US District Courts can become important precedents. That is, the law set forth by the court in these cases, arguably, could justify the same or similar results in other cases. For example, if the court admits confessions obtained by coercion, coerced confessions in cases not involving terrorism could follow. However, what do we do? If, in the opinion of some government employee(s), a person has information that may prevent a catastrophic attack on this country, and that employee honestly feels the only way to get the information is to resort to “enhanced interrogation techniques” (whatever that means) which techniques violate the mandates of the Bill of Rights, should it be permissible to disregard the Constitution because of the urgency of the situation? My inclination as a trial lawyer is to say “NO”—but, admittedly, I may be very wrong. I dislike the use of trite clichés, but the phrase “slippery slope” comes to mind.

If a police officer honestly believes, a person knows the location of a kidnapped child and refuses to disclose the child’s whereabouts, can the officer resort to illegal coercion? Many would argue for permissibility, but certainly, any evidence gained by wrongful coercion is excludable, as the law now exists. In addition, criminal prosecution of the police officer would likely follow. Philosophical dilemma----right and wrong—Kant’s categorical imperative might provide the answer.

If these detainee cases proceed to trial in the U.S. District Courts, there is little doubt the defendants will allege violations of their Constitutional rights, as defenses. Those defenses take on enhanced significance if the prosecutor attempts to introduce evidence against the defendant that the government obtained improperly. If the prosecutor has independent (of the defendant) evidence sufficient to convict, and foregoes offering the tainted evidence at trial, the Constitutional defenses may not be relevant. However, judging by the results of the forty detainee habeas corpus cases heard in the Federal District Courts, most of the independent evidence against the defendants was very weak, indeed. Of the forty cases, approximately thirty were “won” by the detainees and the remaining “won” by the government. The courts commented publicly on the weaknesses in some of the government cases. Why so weak?-I have no idea. In addition, I have no idea why the government has only appealed two of the adverse decisions. The most logical conclusion (to a lawyer) is that the decisions are not reversible on appeal.

The rights guaranteed to a criminal defendant which are not available to a prisoner of war or other military detainee are many, including: (1) probable cause for detention—part of the governments burden in a criminal case is to prove that there was probable cause to believe that the defendant was engaged in criminal conduct when originally confronted by the government representatives; (2)Miranda warnings--- once the police investigation focuses on an individual, he or she must be given the Miranda warnings before any interrogation can commence or continue; (3)right to an attorney-- an attorney must be provided, if requested by the defendant, before any questioning can commence or continue; (4) speedy, public trial-- the defendant has the right to a speedy and public jury trial; and (5) right of confrontation-- defendant has the right to confront and cross-examine the witnesses against him.
Probable Cause for Detention: In a war context, no probable cause is necessary to detain persons, place them into a holding facility until the end of hostilities, and then return them to their own country once hostilities terminate. In a civilian court, the prosecution must prove probable cause to believe the defendants were engaged in criminal activity. Merely being present, geographically, is generally not sufficient. If the court determines that no probable cause existed for the initial detention, release would (probably) follow. (I make no determination about the action, or inaction, on the part of the INS.)

If defendants assert, and prove, violations of the Geneva Conventions, those violations could establish a lack of probable cause to detain, prove embarrassing to the government, and result in dismissal of charges.

The Geneva Conventions presume that any prisoner or detainee is entitled to the protections of the Conventions. The right to protected status can be adversely determined only at a hearing before “a competent tribunal”. That did not happen at Guantanamo, or elsewhere. Article 5 of the Convention provides, “…should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article Four, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”(Emphasis added) It is not sufficient for the Executive Branch to proclaim that persons are “unlawful combatants”.

Failure to provide “Miranda” warnings: No Miranda warnings are required for prisoners of war. The Law of War***, The Law of Nations and the Geneva Conventions, provide rules and procedures for interrogations of prisoners of war. Under normal, circumstances, no prosecutions occur for being a participant in a war.

Miranda warnings are impediments to government obtaining evidence that constitutes self-incrimination. Evidence is normally excluded which is obtained through wrongful coercion. The courts now admit evidence, other than confessions, gained from purely voluntary statements even if no Miranda warnings are given. However, that is a new departure from what had become settled “Miranda law”, and could revert at any time depending on the next appointment to the Supreme Court.

In the detainee cases, the dichotomy of prisoner of war versus accused criminal is very apparent. As a prisoner of war, the detainee can be questioned free of constitutional burdens. However, once government changes the detainee status to that of an accused the detainee is cloaked with the guarantees of the Bill of Rights. The issue then becomes, when do the rights attach-- ab initio**** or with the change of status?

There is no uniformity of opinion on this critical question. If the rights attach when the status is changed, then the detainee questioning, even if coerced, may not necessarily result in the exclusion of evidence. If, however, the court determines that once the status is changed, the prior interrogation is subject to the Bill of Rights, the exclusion of all evidence from the time of the original questioning is probable, if there was no Miranda warning, a fortiori***** , if coercion existed. The other, and possibly best, option is for the court to rule that status changes when the government had reasonable cause to believe that the detainee had committed a crime and not an act of war, and intends to pursue criminal prosecution. An immediate admonition per Miranda should then be given, and all coercion and questioning should cease. The admissibility of the evidence obtained should then be determined by an examination of the methods used to obtain the evidence--if coerced it should be inadmissible—admissible, if voluntary.

Right to an Attorney: If this country is truly a republic, and we, therefore, abide by the rule of law, then no question should exist as to the right to an attorney when a person accused of crime is in the custody of our government. It seems reasonable (to me) that the government officials must make an election, between prisoner of war and criminal defendant. If held as a prisoner of war, then the Geneva Conventions apply. If held as a criminal defendant, the constitutional guarantees apply, including the right to an attorney.

The Right to a Speedy and Public Trial and the Right of Confrontation: Security is a primary concern of the Government if cases proceed to trial in a public forum as mandated by the Constitution. It is commonplace for detainees accused of crime to threaten disclosure of classified information if they are prosecuted (gray mail). Dismissals of prosecutions are frequently the result of such threats, which result in the release of persons potentially dangerous to the security of the United States. To combat the threat of gray mail, Congress enacted the Classified Information Protective Act (CIPA) in 1980.

CIPA, in brief, provided for a system to submit substitute evidence rather than classified information. In order for the court to allow such substitution the judge must assure that the substitution does not impair the defendant’s legitimate defenses. This concept gives a trial lawyer pause---how do you cross examine substitutes.

A secondary concern of the Government is the trial becoming a spectacle. The enemies of the United States will frequently do all they can to embarrass the government. Protection of the agents and representatives of government against danger or harm is vital. The
Federal District Court judges are uniformly competent to manage their courtrooms. They have the arsenal to assure proper decorum. If a defendant becomes overly aggressive, the court can have the defendant removed from the courtroom, and placed in seclusion to watch the proceedings on television. In addition, they can be bound and gagged to prevent disruption. My personal concern is not whether the US courts can try these defendants in a manner acceptable to the US citizens, but whether the US Courts should try these defendants, if universal acceptance of the results is a goal.

If a contrary state of affairs should exist, and captured Americans are tried and found guilty by courts in Iraq or Afghanistan, would Americans accept the verdict no matter how fair the trial? I think not.

There are other options for terrorist trials. A suggestion has been made to establish a “national security” court, in which all judges, lawyers and court personnel have the appropriate security clearances to handle and review classified documents. If a new court is established the Congress will need to create a body of law, which provides the rules of procedure as well as safeguards to assure the protection of classified information. The lawyers that defend those accused must be truly independent, bright, well respected, and with abundant jury trial experience. They cannot be government employees, nor should the government select the defense lawyers.

The United States should also rethink their position on the International Criminal Court (ICC) founded in 2002, located in The Hague, Netherlands. There are now 110 countries signed on to the Rome Statute, which is the enabling statute for the creation of the ICC. Admittedly, the ICC has no jurisdiction for crimes committed before July 1, 2002; therefore, no jurisdiction for pre-9/11 criminal activities exists. However, for all serious international criminal acts thereafter, the court could entertain jurisdiction. The judges and lawyers assigned to this court are outstanding, with credentials that equal or exceed most judges and trial lawyers in the United States. However, to proceed before an international tribunal requires a change of thinking by many of our leaders, including their assumption that any courts, except United States courts, will be unfair. I feel the true impediment to our membership in the ICC is the fear that it will not succumb to the dictates of the United States. The United States withdrew from the International Court of Justice, also known as the World Court, in 1986 at the insistence of President Reagan, when Nicaragua prevailed in a suit against the United States. Withdrawal from the ICC occurred in 2002 at the insistence of President George W. Bush. These stories however, are for another day.

The United States must exercise due diligence as well as caution in their approach to these cases. The wrong decisions can result in additional hostilities directed at our country, and a further loss of respect among our allies. I am hopeful that the Executive Branch is not bringing these cases, knowing that because of the inappropriate conduct of government representatives, many will be dismissed -- then letting the courts take the “heat” (which is not uncommon), rather than the Executive Branch employees accepting the responsibility for their own decisions.

END NOTES:
* Something asserted but not proved.


** Among other things.


*** “The study of law is largely the study of history. The law of war is not different. Its history is one of repeated efforts to impose legal constraints on armed conflict by negotiations among military powers. Often those efforts failed to produce a treaty; the treaties that were produced were often less than fully effective. Over time, however, they have produced, along with other sources, a body of law recognized as binding and effective by most of the major military powers.” For those seeking more information I recommend Howard, Andreopolous & Shulman, The Laws of War, Yale Univ. Press (1997)


**** From the beginning.


***** By the stronger reasoning.