NYLS Law Review Vols. 22-63 (1976-2019)

Volume 48 Issue 1 Criminal Defense in the Age of Article 2

January 2004

Unpatriotic Acts: An Introduction

Sadiq Reza New York Law School

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Recommended Citation Sadiq Reza, Unpatriotic Acts: An Introduction, 48 N.Y.L. SCH. L. REV. (2003-2004).

This Article is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Law Review by an authorized editor of DigitalCommons@NYLS. 18178_nlr_48-1-2 Sheet No. 5 Side A 04/27/2004 12:08:32 : 72 , 72 U.S.L.W. cert. granted, noms de guerre cert. granted like shadow characters in a like shadow characters * EZA 3 R ADIQ S and the Court may decide whether the and the Court may decide whether 2 The Court will also decide whether a U.S. The Court will also decide whether 1 the U.S. and deemed an enemy combatant the U.S. and deemed an enemy , 72 U.S.L.W. 3446 (U.S. Jan. 9, 2004)(No. 03-6696). The New York Times inside ´ e that the events of September 11, 2001, “changed e that the events of September cert. granted UNPATRIOTIC ACTS: AN INTRODUCTION ACTS: UNPATRIOTIC John Walker Lindh.John Walker Moussaoui. Zacarias Padilla. Jose Rich- The clich * Professor, New York Law School. Associate My thanks to Gene Cerruti, Steve 2. Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003), 1. Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003), M K 3486 (U.S. Jan. 23, 2004) (No. 03-1027). U.S.L.W. 3327 (U.S. Nov. 10, 2003) (No. 03-343); Hamdi v. Rumsfeld, F.3d 335 337 (4th Cir. 2003), Ellmann, Tanina Rostain, and Don Zeigler for comments; second-year student Ellmann, Tanina Rostain, and Don Zeigler capable assistance with citations; and the Na- Courtney Fennimore, for quick and very for initially gathering attorneys who re- tional Association of Muslim Lawyers (NAML), the authors in this Symposium issue, on a present terror accusees, including some of Columbia Law School in October 2002. panel at its Third Annual Conference at ard Reid.does not instantly recognize the Who reading these lines men?names of these their assigned Or at least shoe bomber. 20th hijacker, dirty bomber, American Taliban, For flitted through these names and others have two and a half years of our daily copies \\server05\productn\N\NLR\48-1-2\NLR210.txt unknown Seq: 1 16-APR-04 8:42 citizen arrested can be similarly detained; government can continue to detain individuals under the federal government can continue to detain play, along with black-and-white photographs underneath which black-and-white photographs play, along with (and sometimes text tells us of their alleged black-and-white in their tribula- and the latest developments proven) wrongdoing trials) with our government.tions (and sometimes But the men our government, invisible, hidden from us by themselves are almost and the play are too dangerous for which insists that the characters public view. everything” is perhaps nowhere more true than in the realm of everything” is perhaps nowhere criminal procedure. whether Soon the Supreme Court will decide at Guantanamo Bay, Cuba, aliens the United States has imprisoned U.S. courts, and whether a U.S. can challenge their detention in zone can be held indefinitely, citizen captured in a foreign war when the president decides he is without counsel or even a charge, an “enemy combatant.” C Y 18178_nlr_48-1-2 Sheet No. 5 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 5 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 5 Side B 04/27/2004 12:08:32 M K C Y , N.Y. the 4 [Vol. 48 Each of 6 We thus await 7 Waging War, Deciding Guilt: Trying Bush’s Power To Plan Trial Of Detainees Is U.S. Charges Two at Guantanamo with Conspiracy L.J. 1259 (2002). ALE , No. 03-4792 (4th Cir. Oct. 7, 2003). NEW YORK LAW SCHOOL LAW REVIEW , Jan. 6, 2004, at A16 (discussing Supreme Court brief filed by five , Jan. 6, 2004, at A16 (discussing Supreme , 111 Y Neil A. Lewis, IMES Meanwhile, the American Civil Liberties Union is Civil Liberties the American Meanwhile, City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (“the Fourth 3 United States v. Moussaoui, 282 F. Supp. 2d 480 (E.D. Va. 2003) (barring United States v. Moussaoui, 282 F. Supp. , N.Y. T appeal docketed See, e.g., See, e.g., See and U.S. military tribunals will soon begin trying Guanta- tribunals will soon begin trying and U.S. military 5 This is not to say we were not warned that terrorism might alter we were not warned that terrorism This is not to say , Feb. 25, 2004, at A1; Neil A. Lewis, 7. 6. 3. 349 F.3d 42 (2d Cir. 2003) (holding that material- United States v. Awadallah, 4. v. Ashcroft, No. 03-72913 (E.D. Mich. filed July 30, Muslim Community Ass’n. 5. IMES T military defense lawyers challenging president’s constitutional authority to try detainees in military tribunals); Neal Katyal & Laurence Tribe, the Military Tribunals Amendment would almost certainly permit an appropriately tailored roadblock set up Amendment would almost certainly permit an appropriately tailored roadblock set to thwart an imminent terrorist attack”) (holding Fourth Amendment violated by road- death penalty and forbidding prosecutors to introduce evidence that defendant ac- death penalty and forbidding prosecutors of or involvement in those attacks, as cused in had knowledge potentially exculpatory witnesses in U.S. sanctions for government’s refusal to produce custody), Challenged witness statute permits detention for grand jury testimony), petition for rehearing filed witness statute permits detention for grand January 20, 2004. 2003), available at http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=13248&c= 206; USA PATRIOT Act § 215, 50 U.S.C. § 1861 (West 2003). 4 testimony grand jury in order to obtain statute material-witness from them. \\server05\productn\N\NLR\48-1-2\NLR210.txt unknown Seq: 2 16-APR-04 8:42 namo Bay detainees in proceedings shorn of constitutional in proceedings shorn namo Bay detainees process. embraced as essential to due protections long challenging the government’s authority to search homes without to search homes authority the government’s challenging to other organizations order libraries and cause and to probable both in secret; private citizens, information about disclose Fourth Circuit is deciding whether a terror defendant can have ac- deciding whether a terror defendant Fourth Circuit is who a trial terrorists in government custody cess to other alleged the defen- might provide evidence exculpating court has decided dant; these matters involves a criminal procedure issue that is central to a criminal procedure issue these matters involves efforts. post-September 11 domestic antiterrorism the government’s would ever arise. imagined that any of these issues Few of us, if any, the criminal procedure equation — that ever-shifting and never and individualized justice on fully satisfying balance of civil liberty efficient criminal law enforcement the one hand, and effective and on the other. suggested that constitu- The Supreme Court itself has differ in terror cases, and our law tional rules of procedure might of constitutional “exceptions” in and history abound with examples national security. the face of perceived threats to 18178_nlr_48-1-2 Sheet No. 5 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 5 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 6 Side A 04/27/2004 12:08:32 5 AVID , some of INTRODUCTION New York Law School Law Review New York Law School 8 88-179 (2003). LIENS A NEMY The Symposium begins with Robert Boyle’s discussion of the The Symposium begins with Robert But many men and women have done more than simply wait; than simply have done more men and women But many , E 8. It is a matter of public record that I have met with as a OLE M K legal adviser in connection with the charges he faces related to the September 11 at- legal adviser in connection with the charges he faces related to the September 11 tacks. is only to introduce the articles and some of My role in this Symposium, however, the issues raised by the range of terror cases. these advocates share their stories with us, presenting the facts and share their stories with us, presenting these advocates lessons they have they have worked on along with the law of cases learned in the process. the insight of these practi- Accompanying who grapple analysis from full-time legal scholars tioner-scholars is criminal of criminal procedure, substantive with the same issues in these cases. ethics that practitioners face law, and professional a unique contribu- from abroad is here too, in And valuable wisdom has a bit more defenders in Israel, a country that tion from public than we do.experience with terror prosecutions I hope you find resource, a primer if you will, the articles in this issue an invaluable in the rights of individuals for practitioners and scholars interested accused of terrorism. C block the primary purpose of which was crime control); Florida v. J.L., 529 U.S. 266, block the primary purpose of which was of a person carrying a bomb need bear 274 (2000) (“We do not say . . . that a report of a person carrying a firearm before the indicia of reliability we demand for a report (holding Fourth Amendment violated police can constitutionally conduct a frisk.”) when police frisk suspect upon no more than anonymous tip of gun possession); D case of his client Osama Awadallah, a Palestinian-Jordanian student case of his client Osama Awadallah, number appeared on a scrap of from San Diego whose telephone one of the alleged September 11 paper found in the belongings of hijackers. interroga- Mr. Boyle describes Mr. Awadallah’s seizure, witness, his treatment while tion, and arrest as an alleged material for perjury detained, and his ultimate indictment — on startlingly weak grounds — a grand jury pursuant to a after he testified before government summons. argument that Mr. Boyle also presents his 18 U.S.C. §the federal material-witness statute, 3144, does not au- grand jury witnesses.thorize the detention of prospective A federal 2003] and half of us hoping with bated breath, decisions today’s pending rule. become the exceptions will half fearing such the other terrorists alleged the battle, defending they have joined instead feel pose that many and practices prosecutions against government themselves. to democracy as the terrorists as much of a threat In of the this special issue \\server05\productn\N\NLR\48-1-2\NLR210.txt unknown Seq: 3 16-APR-04 8:42 C Y 18178_nlr_48-1-2 Sheet No. 6 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 6 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 6 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 , 72 U.S.L.W. , Mar. 4, 2004, OST . the However . P ASH cert. granted ´ e Padilla. Ms. New- , W en banc 202 F.Supp. 2d 55 (S.D.N.Y. 2002) (Scheindlin, , Mr. Boyle’s argument is now before the Mr. Boyle’s argument 9 Lawyer Visits “Dirty Bomb” Suspect NEW YORK LAW SCHOOL LAW REVIEW While we await the Supreme Court’s decision, we While we await the Supreme Court’s 11 , 72 U.S.L.W. 3446 (U.S. Jan. 9, 2004)(No. 03-6696). Meanwhile, after barring all access to Mr. Padilla since Meanwhile, after barring all access Michael Powell, 10 See cert. granted The Symposium next presents edited portions of briefs written next presents edited portions of The Symposium 9. United States v. Awadallah 10. Padilla v. Rumsfeld, 352 F.3d 695 (2nd Cir. 2003), 11. at A10. 3486 (U.S. Feb. 20, 2004)(No.03-1027); Hamdi v. Rumsfeld, 337 F.3d 335 (4th Cir. 2003), man chronicles Mr. Padilla’s May 2002 arrest and detention by the Mr. Padilla’s May 2002 arrest and man chronicles (to what, the as an alleged material witness Department of Justice W. Bush’s desig- disclosed), President George DOJ has not publicly Mr. Padilla’s transfer to the nation of him as an enemy combatant, Defense, and Mr. Padilla’s subse- custody of the Department of quent imprisonment — two years approaching — without a crimi- nal charge or access to counsel. presents the Ms. Newman also treatment of an Ameri- legal arguments against this unprecedented can citizen —already prevailed before the Sec- arguments that have Padilla’s detention unlawful and ond Circuit, which found Mr. custody.ordered his release from military Court is The Supreme appeal of that ruling the same scheduled to hear the government’s Hamdi, the other U.S. citizen-cum- day it considers the case of Yaser detention the Court is re- enemy combatant whose incommunicado viewing. statutory issue is ultimately resolved, Mr. Boyle’s account raises sep- ultimately resolved, Mr. Boyle’s statutory issue is treatment the propriety of the government’s arate questions about of Mr. Awadallah. and indictment on behalf of her client, Jos by Donna Newman J.); In re Material Witness Warrant, 213 F. Supp. 2d 287 (S.D.N.Y. 2002)(Mukasey, J.); J.); In re Material Witness Warrant, 213 F. (2nd Cir. 2003), petition for rehearing filed United States v. Awadallah, 349 F.3d 42 January 20, 2004. 6 statute was ruled that the material-witness in New York trial judge his indict- and dismissed Awadallah’s case in Mr. indeed misused case New York in another trial judge in a second federal ment, but Second jury witnesses; the apply to grand the statute did decided ordered Mr. Awadallah’s decision and with the latter Circuit agreed indictment reinstated. \\server05\productn\N\NLR\48-1-2\NLR210.txt unknown Seq: 4 16-APR-04 8:42 Second Circuit in a petition for rehearing Second Circuit the time he was designated an enemy combatant, the government the time he was designated an enemy meet with him, although it still has now allowed Ms. Newman to to counsel is a matter of execu- maintains that Mr. Padilla’s access tive discretion. 18178_nlr_48-1-2 Sheet No. 6 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 6 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 7 Side A 04/27/2004 12:08:32 7 Messrs. defendant 12 pro se (No. 01-455-A) (ar- (No. 01-455-A) (chal- Moussaoui Moussaoui in terror cases: “Special in terror cases: United States v. El-Hage, 213 F.3d but see de rigueur INTRODUCTION , 282 F. Supp. 2d at 482 (Sixth Amendment requires de- , 282 F. Supp. 2d at 482 (Sixth Amendment Moussaoui ., See, e.g The next article is written by Sam Schmidt and Josh Dratel, a and Josh Dratel, by Sam Schmidt article is written The next 12. M K fense access to potentially exculpatory witnesses in government custody despite govern- fense access to potentially exculpatory witnesses Memorandum in Support of Defendant’s ment’s asserted national security concerns); at 9, Motion for Relief from Conditions of Confinement due process right to participate in defense guing special administrative measures violate at http://notablecases.vaed.uscourts. and Sixth Amendment right to counsel), available of Law in Support of Defendant’s gov/1:01-cr-00455/docs/64929/0.pdf; Memorandum Discovery and for Relief from Special Ad- Motion for Access to Classified and Sensitive at 11, ministrative Measures Concerning Confinement lenging withholding of material designated classified or sensitive from lenging withholding of material designated on Fifth and Sixth Amendment grounds), available at http://notablecases.vaed.us courts.gov/1:01-cr-00455/docs/65801/0.pdf; 2003] to digest. arguments Newman’s winning have Ms. may be And we York Law graduate of New Newman is a proud that Ms. especially School. Wadih El- represented lawyers who terror-defense pair of seasoned District of New 11 trial in the Southern Hage in the pre-September U.S. embassies in the August 1998 bombings of the York relating to and Dar es Salaam, Tanzania.Nairobi, Kenya, That trial ended in but not Mr. El-Hage and his three co-defendants, the conviction of of the govern- were able to turn some before our attorney-authors client’s advan- practices to their ment’s special terror-prosecution tage. These practices are now conditions of con- that impose onerous Administrative Measures” access to counsel and severely restrict their finement on defendants allow the govern- world; protective orders that and to the outside “particularly sensitive,” which ment to designate discovery material that material with anyone not prevents counsel from sharing the designation of wide swaths of “cleared” by the government; and impeachment material and other relevant information, including as “classified,” thus preventing potentially exculpatory information, even the client from seeing it. of course make All of these practices more difficult than repre- defending terror accusees monumentally defendant, to say nothing of the senting the everyday criminal questions they raise. novel and serious constitutional \\server05\productn\N\NLR\48-1-2\NLR210.txt unknown Seq: 5 16-APR-04 8:42 74, 81-82 (2d Cir. 2000) (rejecting due process challenge to special administrative mea- sures); United States v. Bin Laden, No. S(7)98 CR. 1023 LBS, 2001 WL 66393 (S.D.N.Y. Jan. 25, 2001) (rejecting Fifth and Sixth Amendment challenges to allowing counsel but not defendant access to classified material). Schmidt and Dratel describe how, through ingenuity and persis- Schmidt and Dratel describe how, C Y 18178_nlr_48-1-2 Sheet No. 7 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 7 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 7 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 Professor 14 The Ninth Circuit has 13 NEW YORK LAW SCHOOL LAW REVIEW Next, Kenneth Mann and David Weiner provide an illuminat- David Weiner Mann and Next, Kenneth an article by Professor Ran- The Symposium next presents 13.14. 18 U.S.C. § 2339B (West 2000 & Supp. 2003). Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000) (holding that terms “personnel” and “training” as forms of forbidden material support are void for vagueness); Humanitarian Law Project v. DOJ, 352 F.3d 382 (9th Cir. 2003) (same, and to satisfy due process conviction requires proof beyond a reasonable doubt that defendant knew organization was designated as a foreign terrorist organization or knew 8 in part these restrictions managed to turn nonetheless tence, they client’s benefit. to their system public defender of the Israeli ing account —the pro- and in about learn from Israel have much to show that we cess they accusees.defending terror describe how the right to The authors culminating in the counsel has evolved in Israel, appointed defense (OPD), in of the Office of the Public Defender 1996 establishment proudly worked.which they both They also demonstrate the ex- establish trust with attorneys in that office take to traordinary pains and vigorously defend them Palestinian clients —including those of scores of Is- crimes resulting in the death charged with terrorist raeli civilians — advocacy and the very best traditions of zealous in representation.client-centered Mann and Weiner do Professors charged not in in the defense of those identify shortcomings courts, to which OPD juris- Israel’s civilian courts but in its military is not clear whether those courts diction does not extend, and it protection than the U.S. accord defendants more or less procedural to commence.military tribunals that are soon their story of But Barghouti, the alleged terrorist how the OPD defended Marwan in 2002 for a series of terrorist leader tried in Israeli civilian court back some two and a half years, is a murders and conspiracies going sophisticated understanding of a tale of inspired defense lawyering, to the principle of client au- client’s objectives, and fierce devotion tonomy. who repre- It should be required reading for every lawyer U.S. sents a terror defendant in the pre-September 11 law dolph Jonakait concerning the hotly-debated support” or resources to desig- that forbids providing “material nated “foreign terrorist organizations.” \\server05\productn\N\NLR\48-1-2\NLR210.txt unknown Seq: 6 16-APR-04 8:42 twice declared parts of this law unconstitutionally vague, and has twice declared parts of this law statute requires proof the defen- added that a conviction under the terrorist activities. dant knew of the organization’s 18178_nlr_48-1-2 Sheet No. 7 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 7 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 8 Side A 04/27/2004 12:08:32 , 9 15 Humanitarian Law see also Moussaoui Asks to Call Three Tom Jackman, see also , Mar. 22, 2003, at A18 (“Sources close to the case INTRODUCTION OST . P ASH , W Next, Professor Cameron Stracher writes about the govern- Cameron Stracher writes about Next, Professor 15. The Fourth Circuit ruled that only those portions of pleadings and arguments M K 333 F.3d 509, 513 (4th Cir. 2003); have said that U.S. District Judge Leonie M. Brinkema has granted the defense access to have said that U.S. District Judge Leonie M. Brinkema has granted the defense access Binalshibh and that the government has appealed. But that is not a matter of public of organization’s unlawful activities that caused designation); of organization’s unlawful activities that caused 2003] infirmity.third possible constitutional identifies yet a Jonakait In when the is violated that due process D.C. Circuit ruled 2001, the designates government — to be an opportunity without notice or the statute allows heard, as — has sufficient presence a group that terrorist organization. as a qualifying in the U.S. on this Building is again violated Jonakait argues that due process ruling, Professor providing material prosecutes a person for when the government creates an ir- so designated because the statute support to a group terrorist organiza- the group is a qualifying rebuttable presumption tion. urges amending the statute to As a remedy, Professor Jonakait whose sufficient notice to any organization require constitutionally charged or at least allowing individuals designation is imminent, to challenge the designation. under the statute terrorist prosecu- shroud significant portions of its ment’s efforts to tions in secrecy. through the Professor Stracher addresses the issue only person in the U.S. who faces case of Zacarias Moussaoui, the 11 attacks.charges related to the September Moussaoui’s In Mr. sealed pleadings and orders at case, the district court had routinely Professor Stracher and his col- the government’s request until media intervenors, convinced leagues, representing several news compelled public access to vir- the court that the First Amendment “classified.”tually all documents not marked Professor Similarly, the Fourth Circuit to open Stracher and his colleagues convinced government’s appeal of the district the filings and arguments in the to produce detained wit- court’s order directing the government nesses — be Ramzi bin al-Shibh, one of whom is widely reported to as a co-conspirator named in Mr. Moussaoui’s indictment — to de- might exculpate Mr. Moussaoui. termine whether their testimony \\server05\productn\N\NLR\48-1-2\NLR210.txt unknown Seq: 7 16-APR-04 8:42 More al Qaeda Witnesses Project v. Ashcroft, No. CV03-6107 ABC., 2004 WL 112760 (C.D. Cal. 2004) (holding in Project v. Ashcroft, No. CV03-6107 ABC., 2004 added to definition of forbidden mate- part that language “expert advice or assistance,” § Act, 18 U.S.C. rial support by provision of USA PATRIOT 2339A, is impermissibly vague). specifically designated as “classified” could remain sealed. United States v. Moussaoui C Y 18178_nlr_48-1-2 Sheet No. 8 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 8 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 8 Side B 04/27/2004 12:08:32 M K C Y See [Vol. 48 , Feb. 6, IMES , Mar. 5, 2004, IMES , N.Y. T , N.Y. T 16 Judge Grants the Government A Delay of Moussaoui’s Faulting U.S., Germany Frees a 9/11 Suspect NEW YORK LAW SCHOOL LAW REVIEW Philip Shenon, German Judges Order a Retrial for a 9/11 Figure , Feb.13, 2003, at A21 (“the Justice Department [. . .] is appealing a , Feb.13, 2003, at A21 (“the Justice Department see also IMES Finally, two scholars square off over an issue that must lie at the square off over an issue that Finally, two scholars , N.Y. T 16. It bears noting that the government’s refusal to make detainee Ramzi bin al- at A1; Desmond Butler, 2004. ruling by Judge Brinkema that would allow Mr. Moussaoui’s court-appointed lawyers to ruling by Judge Brinkema that would allow Qaeda member who was captured in question Ramzi bin al-Shibh, another admitted to court information said.”). Pakistan last October, people with access the Shibh available has now reportedly derailed two German prosecutions related to September 11 attacks, including the sole conviction in the world in those attacks. record, because Brinkema has sealed most of the proceedings, citing national security record, because Brinkema has sealed most concerns.”); 10 have effec- describes here, Stracher which Professor These efforts, knowl- to prevent public attempt the government’s tively thwarted case with indiscriminate Moussaoui’s much of Mr. edge of concerns. of national security invocations a Fourth We now await better in- issue, much of the witness on the merits Circuit ruling Professor Stracher. formed thanks to the use of of permissible antiterrorism practices: outer boundary suspected terrorists.torture to interrogate Professor Marcy Strauss provisions of do- definitions of torture and the presents the various it. law that ostensibly forbid mestic and international She shows might find methods that qualify as torture how interrogation Amendment privi- in the space between the Fifth breathing room the due process self-incrimination and lege against compulsory particularly if the and Fourteenth Amendments, clauses of the Fifth harm (the “ticking bomb” goal is to prevent imminent catastrophic is not used in a criminal scenario) and the information obtained trial. should be Nevertheless, Professor Strauss concludes, torture policy grounds because it is im- forbidden on constitutional or to limit in any principled way.moral, ineffective, and difficult In focuses not on whether or not response, Professor Alan Dershowitz rather, given its widely-reported torture should be employed, but and its likely future use in a tick- post-September 11 use by the U.S. that it be regulated by warrant. ing-bomb scenario, his preference a warrant requirement could re- Professor Dershowitz shows how of torture; he answers those who duce the use and the severity it is done “off the books” by would permit torture only when and public accountability. stressing the virtues of judicial control \\server05\productn\N\NLR\48-1-2\NLR210.txt unknown Seq: 8 16-APR-04 8:42 Desmond Butler, Trial 18178_nlr_48-1-2 Sheet No. 8 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 8 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 9 Side A 04/27/2004 12:08:32 , 11 , Nov. Jonathan IMES , Nov. 7, 2003, at see also , N.Y. T IMES L.A. T Panel Says a Deported Saudi Was INTRODUCTION Man Held in U.S. Was Wired 2 Large Sums From Germany Man Held in U.S. Was Wired 2 Large Sums From , Jan. 27, 2004, at A16 (quoting member of indepen- , Jan. 27, 2004, at A16 (quoting member New Theory on a 20th Hijacker Is Offered U.S. Says Suspect Tied to 9/11 And Qaeda Is Captured in U.S. Says Suspect Tied to 9/11 And Qaeda Is IMES ,” N.Y. T Philip Shenon, , Sept. 14, 2002, at A1; Philip Shenon, See No one can fault the government for moving aggres- the government for moving No one can fault IMES 17 , Oct. 16, 2001, at B8; using the criminal process, for violating clear mandates and process, for violating clear mandates using the criminal Commentary, The Growing Collection of “20th Hijackers,” IMES There are, of course, many more issues of criminal procedure more issues of course, many There are, mis , N.Y. T 17. trial court has forbidden the government to introduce any evidence of The M K B17 (“When the case against Moussaoui began falling apart under a mountain of con- tradictory evidence, the government announced that it had captured Bin al-Shibh – who was then labeled the 20th hijacker.”). 16, 2001, at B10; James Risen, Turley, dent commission on September 11 attacks as saying “[i]t’s extremely possible if not dent commission on September 11 attacks as saying “[i]t’s extremely possible if probable that Mohamed al-Kahtani was to be the 20th hijacker”); Raid Likely “20th Hijacker Mr. Moussaoui’s alleged involvement in the September 11 plot as one sanction for the Mr. Moussaoui’s alleged involvement in the exculpatory detainee-witnesses.government’s refusal to produce the potentially United 487 (E.D. Va. 2003).States v. Moussaoui, 282 F. Supp. 2d 480, has, The government that Mr. Moussaoui was the “20th hijacker,” moreover, long since given up its theory and more recently a different individual as naming, instead, first Ramzi bin al-Shibh that hijacker. 2003] those dis- than terror prosecutions the government’s raised by this volume.cussed in rep- other practitioners are also many There and courage, creativity, today with terror accusees resenting vilified of even these most rights to the constitutional commitment detainees.of defendants and U.S. case other than that of (No charges arising incidentally, involves terrorism Zacarias Moussaoui, 11 attacks out of the September — case may no and even that longer.) \\server05\productn\N\NLR\48-1-2\NLR210.txt unknown Seq: 9 16-APR-04 8:42 sively to protect national security and for using the criminal process national security and for using the sively to protect to do so. take the government to task We can and should, however, for to evade of that process, and for attempting cherished principles prosecutions. public accountability in its terror judicial review and that is what to be anti-American is understandable; For our enemies makes them our enemies. to defend these For American attorneys legal scholars, and others to hold alleged enemies, and for lawyers, principles in pursuing them, the government to core constitutional is quintessentially American. to employ But for our government these enemies is unacceptable. un-American methods in pursuing It is, in fact, unpatriotic. N.Y. T C Y 18178_nlr_48-1-2 Sheet No. 9 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 9 Side Sheet 18178_nlr_48-1-2