Issue No. 7 / April 2006 THE NYU REVIEW OF LAW AND SECURITY A PUBLICATION OF THE CENTER ON LAW AND SECURITY AT NYU SCHOOL OF LAW Prosecuting Terrorism: The Legal Challenge committed to examining the legal dimensions of counterterrorism and national security in the age of terror Newsletter_NYU 3/29/06 7:00 AM Page 2 CENTER FACULTY AND STAFF The NYU Review of Law and Security Executive Director Issue No. 7 / April 2006 Karen J. Greenberg Table of Editor Faculty Co-Directors Contents Karen J. Greenberg Noah Feldman David M. Golove Associate Editor Stephen Holmes Prosecuting Terrorism: Kristin Henderson Richard H. Pildes The Legal Challenge Assistant Editor Administrative Director Jennifer Buntman Heidi Lubov From the Editor: A Season of Reassessment Researchers Director of Programs and Page 3 Jonathan Voegele Publications Andrew Peterson Kristin Henderson Transparency and the Courts Eric Feder Page 4 Communications and Proofreader Development Associate Thwarted Terrorist Attacks Katie Sticklor Colleen Larkin Page 16 Design Director of Fellowships and Wendy Bedenbaugh Prosecuting Terrorism: Special Programs The National Challenge Jennifer Buntman Page 22 ABOUT THE CENTER The Center on Law and Security at 2005 – 2006 FELLOWS Terrorist Trial Updates NYU School of Law is a non-partisan Sidney Blumenthal research and policy institute estab- Page 30 lished for the purpose of examining Amos Elon the legal dimensions of national secu- Baltasar Garzón From the Student’s Corner: rity in the post 9/11 era. The Center Tara McKelvey Material Support Statutes brings together national and interna- Michael Vatis and the Role of Congress tional experts including policymakers, Lawrence Wright By Andrew Peterson law enforcement officials, legal schol- Page 32 ars, journalists and others in an arena BOARD OF ADVISORS that generates local, national, and CLS Summer Intern Reports: Daniel Benjamin international awareness of security Interpol issues.The Center’s work is focused on Peter Bergen Page 34 four main program areas: Rachel Bronson • Global Security Roger Cressey Books of Note • Domestic Security and the Joshua Dratel Page 35 Rule of Law Richard Greenberg • Special Programs Dana Priest • New Initiatives in Legal Samuel Rascoff Education Keith Weston 2 THE NYU REVIEW OF LAW AND SECURITY Newsletter_NYU 3/29/06 7:00 AM Page 3 From the Editor A Season of Reassessment our and a half years have passed terrorist organizations. The courts, too, topics ranged from intelligence reform since the attack on the World are reviewing their own strengths and to law enforcement and counterterror- FTrade Center in downtown New weaknesses in the war on terror. The ism. Paul Clement, Viet Dinh, Richard York City. As we look forward to the Hamdan case (see page 30) revives the Posner, and David Cole were among the five-year anniversary of the attack, we question of whether or not foreign ter- guest speakers who addressed the class find ourselves in the midst of a season of rorist suspects have the right to file on key issues in the now vigorous debate reassessment. This volume, issue no. 7 habeas corpus petitions. The Padilla case taking place in the area of national security. of the NYU Review of Law and Security, (see page 30) questions the president’s Supplementing the focus on the legal presents a range of perspectives on what ability to detain enemy combatants system, this volume includes materials has been achieved and how best to pro- indefinitely. The legal discussion has which help contextualize the nature of ceed in the legal realm in the war on ter- also extended to the question of the the discussion, including a chronological ror. In these pages, contributors consider legality of the war in Iraq. Does the timeline of disrupted terrorist plots pro- these questions: What have we learned president have the constitutional right duced by the White House, which was since 9/11 about the effectiveness and to declare war, and if so, what role does then analyzed by researchers at the legitimacy of our policies? Should we Congress play? Center to determine how these incidents adhere to the reforms put in place In the following pages, leading figures were or were not reported in the media quickly and in the throes of emergency involved in these discussions present (see page 16). Also included is a report or does the distance from the time of their points of view. Joshua Dratel, Neil prepared by the Migration Policy immediate emergency counsel different, Katyal, Stephen Schulhofer and Richard Institute (see page 32) which demon- less radical measures? Are there policies Pildes share their thoughts on the strates the severe alterations in immigra- that have been instituted outside of the importance of maintaining legal rigor in tion policy that have occurred in the regular processes that need to be codi- matters of suspected terrorists, be they name of national security. Another fied? Do we need to rethink the separa- at Guantánamo or on home soil. report of note is a study conducted by tion of powers or are we content to live Andrew McCarthy, Tim Golden, Nat the German Marshall Fund (see page with the protections currently guaran- Hentoff, Donna Newman, and Burt 15) that compares the way Americans teed under the U.S. Constitution? Neuborne discuss, among other issues, and Europeans perceive threats such as The country’s legal system – the whether or not enhanced secrecy, mili- international terrorism, nuclear weapons Constitution, the courts, and Congress tary commissions, and coercive interro- and global warming. – lies at the center of this debate that gation have made the nation stronger All told, the pages that follow are has captivated the nation. Congress is and more effective than it might other- designed to enhance the season of currently engaged in discussions about wise have been in confronting the threat reassessment by providing some perspec- whether or not to extend the country’s of violent Islamic fundamentalism. tive on where we have come from and anti-terror legislation, the USA Each fall the Center runs the Law where we might be headed. PATRIOT Act. The Senate has begun and Security Colloquium, a seminar hearings on the limits of the Foreign open to NYU Law students in which Intelligence Surveillance Act (FISA) distinguished experts are invited to and is obtaining data on terrorists and address the class. This past fall, seminar ISSUE NO. 7 / April 2006 3 Newsletter_NYU 3/29/06 7:00 AM Page 4 This is not, Transparency and the Courts as the government The U.S. government’s war on terror and its detainment and has“ agreed, a prosecution of suspected terrorists have raised many questions and concerns regarding the amount of transparency in America’s judicial traditional war. system. When national security is at risk, is it acceptable for the government to withhold certain types of information? How much So, if it is not a and what type of information should be released to the public? How can the U.S. courts strike a balance between safeguarding traditional war, national security and maintaining judicial transparency? On March and it is a war that 23, 2005, the Center on Law and Security hosted an open forum, entitled “Transparency and the Courts” in which a panel of experts is going to last addressed these issues. forever, are they Participants included: Tim Golden, Investigative reporter for the New York Times saying that the Nat Hentoff, Columnist for the Village Voice laws of war allow Andrew McCarthy, Senior Fellow at The Foundation for the Defense of Democracies and former Assistant U.S. Attorney for us to hold some- the Southern District of New York Donna Newman, Attorney representing enemy combatant body forever? Jose Padilla Donna Newman ” Burt Neuborne, Event Moderator, Inez Milholland Professor of Civil Liberties at NYU School of Law and Legal Director of the Brennan Center for Justice Baltasar Garzón, Burt Neuborne, Karen J. Greenberg, Nat Hentoff, Andrew McCarthy, Donna Newman, and Tim Golden 4 THE NYU REVIEW OF LAW AND SECURITY Newsletter_NYU 3/29/06 7:00 AM Page 5 spiracy theories tend to carry the day in terms of shaping people’s perceptions. But it has been an extraordinary aspect of the past couple of years’ discussion of these policies that so much documen- tary information has come out. Another striking fact of this period, although maybe not a particularly surprising one, is how central a role lawyers have played in shaping the government’s response to al Qaeda and to other forms of terrorism. There is a famous statement by Cofer Black [former Director of the CIA’s Counterterrorist Center] quoted in Bob Woodward’s first book about the war in Afghanistan [Bush at War]. “After 9/11, the gloves come off.” That is very much the impression I think most people Tim Golden, Donna Newman, and Moderator Burt Neuborne have. When, in fact, some of the most Transparency vs. Security is, can we make these two values mesh? important and aggressive players in this Are they irreconcilable, or is it possible are a relatively small and nebbishy group Burt Neuborne for us to have both? of government lawyers – some of whom The basic issue that we will be dis- This is not the first time these ques- remain fairly anonymous people in the cussing tonight is the nature of trans- tions have arisen. During the Cold War, White House and the Justice parency in the judicial system. Courts espionage prosecutions had the same Department – who were determined to have always been a paradigm of open- concerns. Prosecutions during ongoing respond to the shocking brutality of the ness in the American system, from the investigations of certain types of organ- attacks by pushing the law as far as it constitutional protection of a public ized crime figures also had many of the would go.