In Pursuit of Justice Prosecuting Terrorism Cases in the Federal Courts Richard B. Zabel James J. Benjamin, Jr. May 2008 gfhgfh In Pursuit of Justice Prosecuting Terrorism Cases in the Federal Courts A White Paper Richard B. Zabel James J. Benjamin, Jr. May 2008 About Us Human Rights First believes that building respect for human rights and the rule of law will help ensure the dignity to which every individual is entitled and will stem tyranny, extremism, intolerance, and violence. Human Rights First protects people at risk: refugees who flee persecution, victims of crimes against humanity or other mass human rights violations, victims of discrimination, those whose rights are eroded in the name of national security, and human rights advocates who are targeted for defending the rights of others. These groups are often the first victims of societal instability and breakdown; their treatment is a harbinger of wider-scale repression. Human Rights First works to prevent violations against these groups and to seek justice and accountability for violations against them. Human Rights First is practical and effective. We advocate for change at the highest levels of national and international policymaking. We seek justice through the courts. We raise awareness and understanding through the media. We build coalitions among those with divergent views. And we mobilize people to act. Human Rights First is a non-profit, nonpartisan international human rights organization based in New York and Washington D.C. To maintain our independence, we accept no government funding. This report is available for free online at www.humanrightsfirst.org © 2008 Human Rights First. All Rights Reserved. Headquarters Washington D.C. Office 333 Seventh Avenue 100 Maryland Avenue, NE 13th Floor Suite 500 New York, NY 10001-5108 Washington, DC 20002-5625 Tel.: 212.845.5200 Tel: 202.547.5692 Fax: 212.845.5299 Fax: 202.543.5999 www.humanrightsfirst.org In Pursuit of Justice Preface The primary authors of this White Paper are Richard B. Zabel funding. Human Rights First believes that building respect for and James J. Benjamin, Jr., partners in the New York office of human rights and the rule of law will help ensure the dignity Akin Gump Strauss Hauer & Feld LLP. They, along with a to which every individual is entitled and will stem tyranny, terrific team at Akin Gump, devoted much hard work and extremism, intolerance, and violence. Human Rights First many long hours to prepare this Paper on a pro bono basis. protects people at risk: refugees who flee persecution, victims Members of the Akin Gump team include Michael Lockard of crimes against humanity or other mass human rights and Joseph Sorkin, who provided indispensable leadership violations, victims of discrimination, those whose rights are and assistance throughout the process, as well as Jessica eroded in the name of national security, and human rights Budoff, Daniel Chau, Russell Collins, Kirk Conway, Rachel advocates who are targeted for defending the rights of others. Gerstein, Samidh Guha, Christopher Kercher, Natasha Kohne, These groups are often the first victims of societal instability Amit Kurlekar, Leslie Lanphear, Sherene Lewis, Kathleen and breakdown; their treatment is a harbinger of wider-scale Leicht, Alana Martell, Jessica Mason, Robert Pees, Elizabeth repression. Human Rights First works to prevent violations Peterson, Charles Riely, Jamie Sheldon and Ashley Waters. against these groups and to seek justice and accountability Although Akin Gump is proud of the firm’s commitment to pro for violations against them. Human Rights First is practical bono work, the views expressed in this White Paper include and effective. It advocates for change at the highest levels of those of the primary authors and Human Rights First; they are national and international policymaking. It seeks justice not the views of Akin Gump as a firm or of other Akin Gump through the courts. It raises awareness and understanding attorneys. through the media. It builds coalitions among those with divergent views. And it mobilizes people to act. As former Assistant United States Attorneys in the Southern District of New York, Rich and Jim brought to this project their Human Rights First staff who contributed to this White Paper deep and accomplished experiences, perspectives, and include Devon Chaffee, Associate Attorney; Deborah Colson, understanding of the inner workings of the federal criminal Senior Associate, Law and Security Program; Neil Hicks, justice system in the United States. This White Paper benefits International Policy Advisor; Anwen Hughes, Senior Counsel, from their appreciation and understanding of the range of Refugee Protection Program; Kevin Lanigan, Director, Law and tools that prosecutors can and will use to prosecute Security Program; Sahr MuhammedAlly, Senior Associate, individuals whom the government believes to be complicit in Law and Security Program; and Gabor Rona, International international terrorism. This perspective is extraordinarily Legal Director. valuable to Human Rights First and to the broader debate on From our own institutional perspective, we at Human Rights these issues. In publishing this Paper, we hope that it will First are very proud to publish this White Paper, which reflects inform the vitally important public discussion of these matters enormous time and effort by these experienced prosecutors and provide some much-needed practical information on how and their Akin Gump colleagues. It is part of Human Rights the U.S. criminal justice system has worked in the past and First’s continuing effort to work collaboratively with those on should work in the future. the front lines of protecting U.S. national security. Such Human Rights First is a non-profit, nonpartisan international collaborations are both very valuable and at times human rights organization based in New York and Washington challenging. This is a Human Rights First report, and although D.C. To maintain its independence, it accepts no government it was at times challenging to fully harmonize Human Rights Human Rights First Preface First’s views with those of Rich and Jim, we take full responsibility for the Paper’s contents and conclusions. Going forward, we expect and have encouraged Rich and Jim to express their own perspectives on this important set of issues in various venues. We welcome their active participation in the public debate, not just as the primary authors of this Paper but more broadly as respected former prosecutors. In the end, what will be most useful about this White Paper is its detailed demonstration of the strengths and capacities of the federal criminal justice system to try individuals accused of terrorism and other threats to national security. And on this central conclusion we could not be in closer agreement. Human Rights First In Pursuit of Justice Table of Contents I. Introduction ................................................................................................................................................ 1 II. Executive Summary ...................................................................................................................................... 5 A. Discussion of Data Collection................................................................................................................................................5 B. Substantive Law ...................................................................................................................................................................6 C. Securing the Defendant’s Presence in Court ..........................................................................................................................6 D. Detention of Individuals Suspected of Involvement in Terrorism..............................................................................................7 E. The Challenge of Dealing with Sensitive Evidence that Implicates National Security................................................................8 F. Brady and the Government’s Other Discovery Obligations.......................................................................................................9 G. Miranda and the Right to Remain Silent..............................................................................................................................10 H. Evidentiary and Speedy Trial Issues .....................................................................................................................................10 I. Sentencing .........................................................................................................................................................................11 J. Safety and Security of Trial Participants and Others .............................................................................................................11 III. A Brief History of Terrorist Attacks Against United States Interests and an Introduction to the Law Enforcement Response ....................................................................................... 13 A. The Beginnings of Modern International Terrorism ...............................................................................................................13 B. The New Era........................................................................................................................................................................14 1. The First Attack on the World Trade Center and the Exposure of the Conspiracy