The Criminal Lawyer

The 9th Circuit judicial conference wrapped up yesterday.  Hundreds of lawyers spent the last several days discussing this and that in Maui, and finished up with a speech and some Q&A from Justice Kennedy.  He had a lot of different things to say, most of which are unremarkable (such as the Court will be “different” somehow with Stevens gone and Kagan there).  But one thing he said made us sit up and pay attention.

At a panel discussion earlier in the week, the conferees had decided that most terrorism cases ought to be tried in civilian courts, and not in military tribunals.  In his speech, Kennedy said he agreed.  He said that the use of military tribunals was an “attack on the rule of law,” and that it has failed.  “Article III courts are quite capable of trying these terrorist cases.”

He completely missed the point.  The courts have nothing to do with most terrorism, acts of warfare launched from abroad.  But Kennedy’s been in the courts for so long, that that’s his whole perspective.  Not only does he think the courts should try individuals suspected of engaging in terrorist acts, and fighting against the U.S. military on behalf of the terrorists, but he thinks the contrary position is an attack on the rule of law.  Law, he fails to realize, doesn’t enter into it. 

Well, no, that’s not entirely correct.  Law enters into it insofar as our rule of law and sense of fair play become weapons used by enemies without such civilized ways.  And he fails to realize that his attitude is precisely that which our enemies rely on.  His comments play right into their hands.

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As we’ve mentioned before, most terrorism is an (more…)

The Washington Post reports that the Obama administration wants Congress to change the Miranda rule, so that in terrorism cases law enforcement will be able to interrogate longer before having to give suspected terrorists their Miranda warnings.

This is stupid, and unnecessary.

The general idea is to expand the “public safety exception” to the rule. The way that exception works, cops don’t have to Mirandize someone when there’s an immediate danger, and they’re trying to get information so they can deal with it right away. The second the threat stops being imminent, the exception no longer applies.

Attorney General Eric Holder now says that this isn’t enough in terrorism cases, because it doesn’t give investigators enough leeway. Last week’s Times Square bombing suspect was questioned for three or four whole hours before being Mirandized, and last Christmas’ underwear bomber was questioned for (egads!) nearly fifty minutes before the warnings were given. And these delays, Holder says, are already “stretching the traditional limits of how long suspects may be questioned.”

The Obama administration wants to keep terrorism suspects in the civilian criminal justice system, rather than putting them in the military system or designating them as enemy combatants. The Miranda rule is a cornerstone of the civilian criminal justice system, precluding the use at trial of a defendant’s statements made in response to questioning while in custody, unless first informed of the right to remain silent and to a lawyer, and then waiving those rights before speaking. So if the administration is going to keep terrorists in the civilian system, but still wants to get useful intelligence, they’re going to need time to interrogate first before the defendant gets Mirandized and shuts up. That’s what Holder’s saying, anyway.

But that’s complete bullshit, and anyone with any actual experience in the criminal justice system knows it.

First of all, nobody — and we mean nobody — shuts up just because (more…)

Yesterday, we were talking with a colleague about whether we’d ever take a terrorism client. We frankly don’t have any more qualms about defending that type of case than about any other type. But the conversation turned to whether such cases ought to be brought in the courts in the first place. And we just don’t think terrorism should be fought in the courts.

In the years before 9/11, the U.S. dealt with terrorism as a criminal matter. Conceptually, it was no different from any other multiple homicide: the bad thing would happen, law enforcement would try to find out whodunit, and if the suspect was still alive and could be arrested then he’d get prosecuted.

This didn’t work so well. Some people eventually got punished, but the system didn’t stop or deter any future attacks. The criminal justice system can’t do that, after all. It’s purely an after-the-fact thing. Its job is to punish people after the crime is already committed. The courts can’t act proactively to prevent crimes that haven’t been committed yet — punishing people before they’ve done anything would be outrageous. No, proactive national defense is the job of the armed forces.

More than that, our criminal justice system is flatly contrary to the goals of counterterrorism. Preventing terrorist acts requires (more…)