The Criminal Lawyer

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 intel. Any client of mine is going to shut up the second I’m retained, if not sooner. And law enforcement isn’t allowed to arrest people before they’ve done anything wrong. Nor can they coerce confessions, or get wiretaps or search warrants on mere suspicion alone — which is all you’ve got during most investigations. So much for your intel. The White House says we can get intel as part of a plea, but as Mike Mukasey points out in today’s WSJ, any plea is going to take place years after the information would have been of any use.

Law enforcement is not in the job of preventing acts of war. If, during the Cold War, the Soviets had sent a team in to blow up the Capitol Building, it would not have been the FBI’s job to prevent it from happening. Nor would the attackers have found themselves facing criminal prosecution in civilian courts. It would have been treated as an act of war, and the combatants would have been treated accordingly.

Terrorism is no different. And yet there is this bizarre mindset that it is completely different from an act of war, and is instead nothing more than violent crime. But crime is not the same as deliberately sending attackers from foreign lands with the purpose of killing and destroying, in order to attack the nation itself. That’s war, whether it is launched by a governed nation or by a transnational organization.

So it’s hardly surprising that our reliance on the courts and law enforcement alone didn’t get the job done. Because it’s not their job. In the terrorism cases before 9/11, the criminal justice system did its job about as well as can be expected, but it failed abysmally at the task of counterterrorism. It will continue to fail, if we decide that’s how we’re going to fight it.

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On January 25, 1993, Mir Aimal Kansi got out of his car during a red light at an intersection near CIA headquarters, and with an AK-47 shot every male in sight. He drove off and wasn’t pursued. (He actually took a wrong turn into our parents’ cul-de-sac nearby, and our mother watched him trying to find his way, but she thought nothing of it afterwards because the police announcements described a completely different car.) Surprised at the ease of his escape, Kansi caught a flight to Pakistan the next morning. Eventually, his roommate reported him missing and the police found the AK-47 under Kansi’s bed. By that time, he was long gone, being sheltered by a Pashtun tribe in the Afghan border regions (sound familiar?). There was no extradition treaty with Pakistan, so the U.S. didn’t bother with the extradition process. Four years later, they just went in and kidnapped him after luring him out with a smuggling ruse. He was eventually tried in Virginia state court, which sentenced him to death. Kansi was executed at the end of 2002, after many more terrorist attacks had taken place. His body was sent back to Pakistan, and his funeral was attended by province’s entire leadership, the army commander, and the nation’s ambassador to the U.S. It’s safe to say that our criminal justice system didn’t do much here to combat terrorism, or even deter it, though it did eventually punish the culprit.

One month after the CIA shooting, on February 26, 1993, Al-Qaeda terrorists set off a powerful truck bomb under the World Trade Center, hoping to topple Tower One into Tower Two. Ramzi Yousef masterminded it, drove the van an lit the fuse. The project was financed by his uncle Khaled Sheikh Mohammed, and several others took part. It didn’t go exactly as planned, but six people were killed and more than a thousand were injured. Law enforcement didn’t know how it had happened, but the NYPD and FBI began looking for clues. The VIN number on a piece of axle eventually led to Abdul Yasin, the Iraqi who had constructed the bomb. Yasin was taken to FBI headquarters in Newark, questioned briefly, and released. Yasin caught a plane back to Iraq the next day, and his whereabouts are now unknown. Ramzi Yousef’s apartment was then searched, where the police found bomb-making stuff and the business card of Al-Qaeda’s chief bomb-maker and money-launderer Mohammed Khalifa. Ramzi Yousef was not captured, and escaped to fight another day. Khalifa was arrested in 1994 for his role in the bombing, as he was preparing to leave for the Philippines, but the U.S. simply deported him to Jordan. Jordan let him go, and he continued to prosper until he was assassinated in 2007. A few of the henchmen were tried in 1994, and got life sentences. Subsequent events show how abysmally the criminal justice system failed here.

In 1995, anti-government radical Timothy McVeigh copied the truck-bomb idea to retaliate against recent atrocities committed by the feds at Waco and Ruby Ridge. He succeeded in blowing up the federal building in Oklahoma City, killing and injuring hundreds, including the children in the day care center. McVeigh walked away, but his Darwin-Award stupidity got him arrested and ultimately convicted. He got pulled over 90 minutes after the bombing for driving without a license plate, resulting in his arrest for a concealed weapon. He wasn’t suspected of the bombing yet, but he copied the 1993 bombing so well that he gave the feds a road map that eventually led them right to him: he also rented a Ryder truck, the VIN on a part of the axle identified the truck, which was recognized by the motel workers where he’d checked in under his own name. A couple of days later, after he was released on his gun charge in state court, the feds took him into custody. His accomplice Terry Nichols turned himself in that same day, and a search of Nichols’ home turned up all the bomb-making stuff and plans. McVeigh’s own sister would testify against him. Thousands of law-enforcement personnel took part in the investigation, 28,000 interviews were conducted, literally tons of evidence were amassed, millions were spent, and after a massive trial in 1997 McVeigh was sentenced to death. On June 11, 2001, he was executed. The system did its job here, but that’s all it did.

Soon after their 1993 bombing, Al-Qaeda compatriots Ramzi Yousef, Khalid Sheikh Mohammed and Mohammed Khalifa popped up again. Yousef had kept busy in the meantime, first trying to bomb Pakistan’s prime minister a few months after the WTC bombing, and then killing and injuring hundreds in the bombing of the Imam Reza shrine in Iran. Now in 1994 they planned to kill the Pope while he visited the Philippines the following year, and then during the distraction they’d blow up 12 airliners in the air crossing the Pacific from Asia to the U.S., killing 4,000 people. The next phase would involve hijacking planes and flying them into landmark buildings. For the bombings, their idea was to plant small explosives on the planes during the first leg of a two-leg flight, concealing the bombs in childrens’ toys, and then get off the plane so as not to be blown up with it. First, they needed a trial run to see if that would work. So on December 11, 1994, Ramzi Yousef got on a Philippine Airlines 747 en route to Tokyo, went into the lavatory to assemble the explosive, and set it under seat 26K, which in older 747s would have been directly over the center fuel tank. He got off the plane at Cebu, and the bomb went off during the leg to Tokyo. It wasn’t over the fuel tank, so the plane didn’t blow up, but the bomb killed the man sitting in the seat. Also, it had been aligned up-and-down instead of side-to-side, so the wall of the plane wasn’t punctured. Still, those were easy details to correct, and the team started working on a dozen more bombs in Manila. Fortunately, a fire in Yousef’s apartment led to suspicions. The Manila police raided the apartment, had a wild rooftop chase, and ultimately seized a laptop containing all the plans. A later raid turned up the plans for flying planes into buildings. Yousef escaped to Pakistan. He was turned in by one of his recruits in return for a $2 million bounty, and brought back to the U.S. to stand trial for the conspiracy to blow up the flights to the U.S. (We watched that trial while interning with the Southern District’s terrorism and organized crime unit, it wasn’t bad.) He was convicted after a long trial in 1996, and got a life sentence. He was later convicted in 1997 of masterminding the 1993 bombing, and got another life sentence. He was convicted again for conspiring in the 1993 bombing (a complete waste of the system’s resources by this point), and got another life sentence. He’s doing his time in solitary at the Supermax in Colorado. Sure, the system punished the culprit, but as we now know it didn’t do a damn thing to prevent future terrorism.

In July 1996, Eric Rudolph decided to protest against abortion and the “global socialist” Olympics. He did so by setting off a bomb during the games in Atlanta. One person was killed, and over a hundred were hurt. Rudolph put three pipe bombs in an army pack, filled the pack with nails, wedged a steel plate in to direct the blast like a claymore, and hid it under a bench. He called 911 to issue his warning, and meanwhile a security guard had already noticed the pack and was clearing the area so the bomb squad could check it out. Before the bomb squad arrived, the bomb went off, and nails flew everywhere. The security guard, Richard Jewell, was at first praised as a hero, but then the feds started investigating him as a potential suspect. The media had a field day with the idea of a failed police officer who planted a bomb so he could be a hero, but in October the U.S. Attorney formally cleared him of suspicion. The feds then admitted that there were no other suspects, and the case went cold. Rudolph probably would have gotten away with it, but like other similar offenders he was emboldened to try it again. He used similar bombs in 1997 to attack an abortion clinic and a lesbian nightclub in Atlanta. The feds were able to figure out they were all made by the same person. Another bomb at an abortion clinic in Birmingham gave them the last clues they needed, including part of a license plate, to tie it all to Rudolph. They tipped their hand, however, allowing Rudolph to flee into the Appalachians. He remained a fugitive for more than five years. He was arrested by accident: while scavenging for food in a garbage can, a rookie cop suspected him of trying to commit a burglary. Five months later, in October 2003, the feds charged him with the four bombings. Time passed. Then in April 2005, Rudolph took a plea to a life sentence, avoiding the death penalty. He’s with Yousef at the Supermax now.

In February 1997, a Palestinian named Ali Hassan Abu Kamal went to the observation deck of the Empire State Building to carry out a suicide attack. He’d left Ramallah in December, and entered the U.S. on Christmas Eve. He bought a gun in Florida, then went up to New York. On the evening of his attack, he went to the observation deck, pulled out his gun, and started shooting into the crowd. One tourist was killed and six others were injured. Then he put the gun to his head and shot himself. Under orders from Yasser Arafat’s regime, the gunman’s family gave a false story that he was suicidal after a failed business venture, but in 2007 the family revealed that it had been a politically-motivated attack on the U.S. for its support of Israel. Law enforcement wasn’t able to piece together his sudden entry from a place known for its suicide bombers, his purchase of a firearm, and travel to a landmark population center. Nor should that have been law enforcement’s job. But others could have.

In September 2001, a lot of bad things happened. Al-Qaeda did it, masterminded by Khalid Sheikh Mohammed again, using a barely-tweaked version of his and Ramzi Yousef’s Phase II plans from Manila. A lot of finger-pointing went on afterwards, because although U.S. intelligence agencies knew a lot, and were expecting “something very, very, very big,” and in August the president’s CIA brief even said Al-Qaeda was determined to strike inside the U.S., the intelligence community didn’t — indeed, believed that they couldn’t — share this information with domestic law enforcement. CIA had minimal capacity to conduct paramilitary operations of its own, and the military was completely uninvolved in countering Al-Qaeda. The FBI had almost no capabilities that could have prevented the attacks, even though it had significantly ramped up its counterterrorism efforts after the 1993 WTC bombing. But as with any other law enforcement agency, its focus was exclusively after-the-fact and case-specific. The FBI’s ability to gather intel was limited, there was no sharing of intel from other agencies, and the FBI didn’t have the training or resources to do anything about it even if they did get anything useful.

But that was because the FBI is not in the job of preventing acts of war. If, during the Cold War, the Soviets had sent a team in to blow up the Capitol Building, it would not have been the FBI’s job to prevent it from happening. Nor would the attackers have found themselves facing criminal prosecution in civilian courts. It would have been treated as an act of war, and the combatants would have been treated accordingly.

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Terrorism is no different. And yet there is this bizarre mindset that it is completely different from an act of war, and is instead nothing more than violent crime. But crime is not the same as deliberately sending attackers from foreign lands with the purpose of killing and destroying, in order to attack the nation itself. That’s war, whether it is launched by a governed nation or by a transnational organization.

Timothy McVeigh wasn’t sent by some foreign opponent, though. Does that make his acts a crime as opposed to war? Yes, and more: They are treason, as well as crime. Article III Section 3 defines treason, and puts it within the realm of the federal courts: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” Congress duly adopted that definition of the offense in 18 U.S.C. §2381, which allows a sentence of death.

What about Eric Rudolph? Yes, that sort of terrorism counts as crime. If he was trying to force a political decision by violence, then it was terrorism, but he wasn’t trying to attack America, so it stays at the level of a crime. And his attack on the lesbian bar wasn’t so much political as a hate crime, really. Not all mass-murder is war, nor is it treason.

So who should be prosecuted in the criminal courts? Not terrorists directed from abroad. Not combatants captured during war, whether declared or not. It should be limited to offenders like Eric Rudolph.

Over the summer, New York City’s police force demanded that the FBI and the Justice Department make it easier to get wiretaps on suspected terrorists. The feds refused, and the dispute has escalated ever since. The New York Times reports that correspondence has flown between the U.S. Attorney General and the Police Commissioner themselves, as “each accuses the other of mishandling terrorism cases and embracing an approach that made the public more vulnerable.”

Wiretaps are considered one of the most invasive state actions, and so any request for electronic eavesdropping is going to be put under enormous scrutiny before it is ever presented to a judge. Every “i” must be dotted, every “t” must be crossed, and no detail is too small to be overlooked. The slightest inadvertent error can result in a wire being deemed improper, resulting in the exclusion of all the evidence gathered as a result. No law enforcement agency wants to spend vast amounts of time and money on a wire investigation, only to have the evidence thrown out.

So prosecutors carefully prepare wire applications, dissect them, and then send them up the chain of command for approvals. In the DOJ, these internal approvals can take an extraordinarily long time. New York City prosecutors, with bureaus specializing in such applications, can turn around a wire application much faster. Although both tend to err significantly on the side of caution, to minimize the chance of error being found down the road, the feds are much more cautious than the city prosecutors, and will reject wiretap applications that would have passed muster in the DA’s office.

Also, federal wiretaps tend to be short and sweet, not often extending beyond the initial 30-day period normally authorized. Renewal of the authority requires another application, and there just isn’t time to jump through all the hoops while the evidence is still coming in. City-initiated wiretaps, on the other hand, can sometimes extend for 18 months or longer, as they lead to more phone lines and additional evidence.

So there is already a cultural divide between federal and city law enforcement when it comes to wiretaps. The feds are traditionally much more cautious and unlikely to request a wiretap,* while NYC law enforcement, though still very cautious, is not nearly so shy.

Now enter the FISA Court.

The Foreign Intelligence Surveillance Court is set up to review applications for warrants to eavesdrop on suspected spies or terrorists. The court must find probable cause that the target of the surveillance is a foreign agent or terrorist, that the wiretap is going to turn up evidence of such activities, and there is no reasonable less-invasive way to get the evidence.

Only the FBI and the DOJ have access to the FISA Court, however. So if the NYPD wants to get a warrant, it needs to submit it to federal scrutiny. That subjects their applications to much lengthier review, as a result, and also makes them more likely to be rejected and not presented to the court in the first place.

The NYPD now believes that its efforts are being thwarted, and accuses the feds of improperly blocking its wire applications.

So on October 27, police commissioner Ray Kelly accused the feds of putting the public at risk by being too nit-picky. He wrote that the feds were “constraining” critical terrorism investigations, and “doing less than is lawfully entitled to protect New York City,” so that “the city is less safe as a result.”

Four days later, attorney general Mike Mukasey wrote back saying that the city’s approach would be counterproductive, because they’d seek warrants that might exceed what the law allows, so that the evidence gathered could be thrown out, thereby making the citizens less safe.

Mukasey seems to see the FISA Court as little more than a rubber stamp. Presumably, if the court was doing its job, a warrant application that didn’t satisfy the law would be rejected by the court itself. But the DOJ appears not to trust the court to do its job, and so would act as a stand-in for the court.

Although the NYPD didn’t make that point, it did respond by putting the blame squarely on the DOJ for taking too long to review applications, and for applying “a self-imposed standard of probable cause which is higher than that required by Supreme Court precedent.”

As a former prosecutor who did quite a lot of wiretaps involving both city and federal authorities, your humble blogger will be very interested to see how this pans out. In the meantime, it looks like the fight is only getting started. Stay tuned.

* This perplexes the New York Times, which has long accused the Bush administration of trying to improperly extend its wiretapping authority and other national security powers. Many insiders, however, blame the administration for trying too hard to appease its opposition by limiting governmental powers and announcing that to the world, thereby only creating opposition where none previously existed. So while the criticism from the left about wiretapping and other legalities may have been undeserved, the administration has no-one to blame but itself.

In August, Osama bin Laden’s driver Salim Hamdan was sentenced by a military commission at Guantanamo Bay to 66 months, with credit for time served.

It is now reported that, on September 24, the military prosecutors moved for reconsideration of that sentence. Their basis for reconsideration is that the military commission that sentenced Hamdan lacked the power to give credit for time served.

“The length of the sentence is a matter of indifference to us,” said head prosecutor Col. Lawrence Morris. So far as the government is concerned, Hamdan can get out in December as scheduled or whenever. But though the sentence itself is unimportant, the procedural method is a big deal to the prosecution.

It would appear that this is so because perhaps 80 of the Guantanamo detainees are looking at military commissions, rather than courts-martial. A court-martial could impose a time-served sentence. The government is fearful that the Hamdan case sets a precedent so that these 80 commission-sentenced detainees could also receive time served.

If the government wins its argument, Hamdan could be resentenced to a short term allowing him to get out in December, or he could be compelled to serve a further 62 months.

Needless to say, this is a compelling issue with high stakes for the government, the defendant, and a lot of detainees. It will be very interesting to see how this plays out.