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The Secrecy Problem in Terrorism Trials

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The Secrecy Problem in Terrorism Trials THE SECRECY PROBLEM IN TERRORISM TRIALS SERRIN TURNER & STEPHEN J. SCHULHOFER LIBERTY & NATIONAL SECURITY PROJECT BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW THE SECRECY PROBLEM IN TERRORISM TRIALS SERRIN TURNER & STEPHEN J. SCHULHOFER LIBERTY & NATIONAL SECURITY PROJECT BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW www.brennancenter.org We are on strange ground…. But it is the essence of our tradition for judges, when they stand at the end of the marked way, to go forward with caution keeping sight, so far as they are able, upon the great landmarks left behind and the direction they point ahead. If…we are now to enter upon a new era of law in the world, it becomes more important than ever before for the nations creating that system to observe their greatest traditions of administering justice, including this one, both in their own judging and in their new creation. Justice Wiley B. Rutledge dissenting opinion In re Yamashita, 327 U.S. 1, 43 (1946) The Brennan Center for Justice at NYU School of Law unites thinkers and advocates in pursuit of a vision of inclusive and effective democracy. Our mission is to develop and implement an innovative, nonpartisan agenda of scholarship, public education, and legal action that promotes equality and human dignity, while safeguarding fundamental freedoms. The Brennan Center’s Liberty & National Security Project seeks to promote thoughtful and informed discussion of how to address the threat of terrorism within our constitutional framework. Our efforts are rooted in the belief that accountability, transparency, and checks and balances are vital not only to the protection of civil liberties, but also to developing effective and sustainable strategies for fighting terrorism. ABOUT THE AUTHORS Serrin Turner is Associate Counsel for the Liberty & National Security Project at the Brennan Center for Justice at NYU School of Law. After graduating from Harvard Law School (2000), he clerked for Judge Sandra Lynch of the U.S. Court of Appeals for the First Circuit. Prior to joining the Brennan Center, he served as an Honors Program attorney at the Federal Programs Branch of the U.S. Department of Justice. Stephen J. Schulhofer is the Robert B. McKay Professor of Law at NYU Law School. He is the author of Rethinking the Patriot Act: Keeping America Safe and Free (Century Foundation Press 2005); The Enemy Within: Intelligence Gathering, Law Enforcement and Civil Liberties in the Wake of September 11 (Century Foundation Press 2002); and many articles on the nexus between liberty and national security in the struggle against terrorism. He also writes extensively on other aspects of police practices, criminal law, and criminal procedure. Before coming to NYU, from 1986 until 2000, he was director of the Center for Studies in Criminal Justice at the University of Chicago, where he was the Julius Kreeger Professor of Law, and he served for many years as a consultant to the United States Sentencing Commission. He is a graduate of Harvard Law School and clerked for two years for Justice Hugo L. Black. ACKNOWLEDGMENTS The authors are grateful for the contributions of Burt Neuborne, John Norton Pomeroy Professor of Law at NYU Law School and Legal Director of the Brennan Center, and Aziz Huq, Associate Counsel for the Liberty & National Security Project, both of whom provided extensive review and comment throughout the drafting process. Tom Gerety, Executive Director of the Brennan Center, and Frederick A.O. Schwarz, Jr., Senior Counsel, also generously offered their time and guidance in shepherding the project to completion. Valuable research assistance was provided by Rick Simon, Chris Ronk, and Simon Brandler. © 2005. This paper is covered by the Creative Commons Special thanks is owed to the numerous prosecutors, defense counsel, and “Attribution-No Derivs- government officials who agreed to be interviewed in connection with this NonCommercial” license (see http://creativecommons.org). Report. It may be reproduced in its entirety as long as the Brennan Center Finally, we wish to thank the Atlantic Philanthropies and the Open Society for Justice at NYU School of Law Institute for recognizing the need to develop well-balanced counterterrorism is credited, a link to the Center’s policies and responding with critical financial support. web page is provided, and no charge is imposed. The paper may not be reproduced The statements made and views expressed in this publication are solely the in part or in altered form, responsibility of the authors. or if a fee is charged, without the Center’s permission. Please let the Center know if you reprint. ABOUT THIS REPORT In addition to written sources, this Report draws from over twenty detailed interviews with a range of individuals possessing extensive first-hand experience in terrorism investigations and prosecutions. Those interviewed include lead prosecutors and defense counsel involved in the four most significant terrorism cases of the 1990s: the 1993 World Trade Center bombing trial; the trial of Sheikh Omar Abdel Rahman and others for the so-called “Day of Terror” plot, involving a failed scheme to blow up various New York City landmarks on a single day; the trial of Ramzi Yousef for the “Bojinka” plot, a failed Al Qaida plan to blow up a dozen airliners crossing the Pacific over a twenty-four-hour period; and the trial of four Al Qaida members for the 1998 bombings of the U.S. embassies in Kenya and Tanzania. Current and former officials from the Department of Justice, Federal Bureau of Investigation, and Central Intelligence Agency were also consulted. Some of the individuals interviewed did not wish to be quoted by name; they are cited but not identified individually in the text and endnotes. CONTENTS Introduction . 1 Part I: The Federal Courts. 9 The State of the Debate . 9 Basic Rights, Basic Conflicts . 10 Ways to Manage the Need for Secrecy . 16 Filtering: The Classified Information Procedures Act. 17 History of CIPA . 18 What CIPA Does . 19 How Well Has CIPA Worked?. 22 Restricted Disclosure: Protective Orders and Closure of Proceedings . 25 Restricting Disclosure at the Discovery Stage: The “Cleared Counsel” Solution . 25 Restricting Disclosure at Trial . 29 Declassification . 32 Alternate Charges . 35 Delay and Pre-Trial Detention . 37 Assessment . 40 A Case Study: United States v. Moussaoui . 41 Looking Ahead . 45 Part II: Military Tribunals . 47 The Legal and Historical Background . 47 Traditional Limits on Military Jurisdiction. 47 Trial Procedure in Courts-Martial and Military Commissions . 49 The Saboteurs’ Case . 52 Military Commissions in the Wake of the September 11th Attacks . 55 What Protection Do Accused Terrorists Deserve? . 58 Secrecy without Safeguards . 60 Closed Trial Sessions. 61 Hearsay and Anonymous Witnesses . 66 Limits on the Defendant’s Discovery Rights . 69 Limits on the Defendant’s Opportunity to Obtain Witnesses and Documents. 71 Summary . 71 Spurious Precedent and Bad Policy . 72 Should the Commission System Be “Fixed”?. 74 Conclusion . 79 Endnotes . 83 1 INTRODUCTION More than three years since the attacks of September 11th, the legal landscape of the nation’s fight against terrorism remains unsettled. Remarkably, one ques- tion still unanswered is where and how captured terrorism suspects should be brought to trial. The government presently lacks any clear or consistent policy. Shortly after the September 11th attacks, the President announced the creation of special new “military commissions” to be available to try “certain non-citizens” suspected of terrorism. The establishment of the new commissions was and continues to be contentious, yet to date they have not seen much use. The rollout of the com- missions was bogged down for more than two years while the Department of Defense hammered out their rules and procedures behind closed doors. Four suspects held in Guantanamo – all non-U.S. citizens captured abroad – were eventually charged and have been brought before the commissions in initial, pre-trial sessions.1 But all commission proceedings have since been halted pend- ing the outcome of litigation in the federal courts, after a district court found that the commissions’ rules violated military and international law.2 Meanwhile, the government has prosecuted dozens of terrorism cases in the fed- eral courts, although none of the defendants has been a high-ranking Al Qaida planner.3 These federal prosecutions have encompassed both U.S. citizens, such as the Lackawanna Six,4 and non-U.S. citizens, such as “shoe-bomber” Richard Reid. The prosecutions in our federal courts likewise have encompassed both suspects arrested within U.S. borders as well as suspects captured abroad – even on a battlefield, as with John Walker Lindh. Three cases have wobbled controversially between military and civilian categoriza- tion. Jose Padilla, a U.S. citizen arrested in May 2002 at Chicago’s O’Hare International Airport on suspicion that he intended to launch a “dirty bomb” attack, was initially held within the federal criminal system as a material witness. But within a short time, the Administration changed course and labeled him an “enemy combatant”; Padilla has been held in military custody for nearly three years since. It is unclear whether the Administration will ever charge Padilla with a crime, and if so whether it will prosecute in a federal court or a military commission. (The President’s executive order authorizing military commissions currently applies only to non-citizens, but the stroke of a pen could remove this limitation.) Ali Saleh Kahlah al-Marri, a citizen of Qatar lawfully admitted to the United States to study in Peoria, Illinois, was arrested in 2002 and held for trial on charges of lying to the FBI. But on June 23, 2003, as the trial date approached, he too was declared an “enemy combatant” and transferred to a Navy brig in South Carolina. Relying on undisclosed sources, the President determined that al-Marri associated with Al Qaida and therefore should be held incommunicado indefinitely.
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