The Courts and the War on Terror

By Karen J. Greenberg Impunity and contempt infect the Bush administration’s over-hyped legal battle with terrorism.



By Karen J. Greenberg

On the eve of his departure from office, Attorney General John Ashcroft boasted, “The objective of securing the safety of Americans from crime and terror has been achieved.” In this, he echoed a drumbeat of announcements by top officials who have repeatedly proclaimed that, when it came to the war on terror, the administration was succeeding in the courts as well as on the battlefield. As President Bush declared in a speech to the FBI Academy in September 2003, “We’ve thwarted terrorists in Buffalo and Seattle, in Portland, Detroit, North Carolina and Tampa,
Florida.”

In fact, looked at with a cold eye, the administration’s record of convictions in terrorism cases is remarkably inconsequential. Although it is extremely difficult to obtain reliable information on such cases, the facts, as best we know them, are these: Of the 120 terrorism cases recorded on Findlaw, the major information source for legal cases of note, the initial major charges leveled have resulted in only two actual terrorism convictions — both in a single case, that of Richard Reid, the notorious shoe bomber. Of 18 actual charges of “terrorism” brought between September 2001 and October 2004, 15 are still pending and one was dismissed. In lieu of convictions for terrorist acts, the Justice Department uses another related, lesser charge – that of “material
support,” which means providing aid or services to a terrorist or a terrorist organization. Its extreme breadth and over-inclusiveness has rendered it the fallback charge of choice and a
catch-all for anything from having trained in an Al Qaeda camp in Afghanistan back in the 1990s (when Al Qaeda’s focus was the war in Bosnia and other places outside of the United States) to weapons training, or even the exceedingly modest category of producing fraudulent documents, so long as they are knowingly provided to a designated “foreign terrorist organization.”

But what of the six cases of “terrorism convictions,” material support or otherwise, that the President himself hailed as the benchmarks of the administration’s courtroom success story? As it happens, five resulted from questionable plea bargains, often on lesser charges, not necessarily closely related to terrorism, and one has yet to be tried. Only in the Detroit case has there been an actual conviction for “terrorism,” (albeit material support for terrorism), and that case has since been overturned in a manner embarrassing to the Bush administration.

When the plea bargains are considered in their own right, their apparent circumstances should cause the odd eyebrow to be raised. After all, over half of all terrorism cases tried so far have resulted in plea bargains. The Department of Justice (DOJ) alleges that such pleas are offered in exchange for important information in the war on terrorism and spokespersons at the DOJ invariably maintain that, as in criminal cases generally, these have yielded invaluable information. Yet despite the implementation of the Patriot Act and the re-organization of our law enforcement efforts to fight terrorism, the yield seems neither better, nor worse than that which existed prior to 9/11.

Let’s just consider the five already tried cases that the President cited. In most of them, the evidence seems to show that the use of plea bargains had a good deal less to do with getting crucial “terror” information than with getting convictions on the books in situations where a conviction at trial might have proved difficult indeed. In the Buffalo case, the defendants — known as the Lackawanna Six – were initially accused of belonging to an “al-Qaeda sleeper cell,” but
instead ended up pleading to material support charges.

What’s especially interesting here, however, is the way in which some of those plea bargains seem to have been achieved. According to defense attorneys, the defendants were threatened with the prospect of being classified as “unlawful combatants,” the new Bush-administration-defined status which entails imprisonment without end as well as the loss of the right to a lawyer and to communicate with anyone in the outside world. Nor did these appear to be idle threats. There were frightful precedents. The administration had seen no reason for restraint, for example, when, in 2002, it labeled Jose Padilla and Yasser Esam Hamdi, both American citizens, as “enemy combatants” and placed them in military detention and (so far) beyond the reach of the law. (Just last week, U.S. District Judge Henry Floyd ruled that the Department of Justice has 45 days to charge Padilla, jailed in the spring of 2002, or release him.)

Although we have no way of knowing how many domestic suspects have been threatened with enemy-combatant status and so with the possibility of being placed indefinitely in a black hole of detention, several defense attorneys have gone on record with similar stories in which the DOJ used warnings about potential enemy-combatant status as leverage for obtaining cooperation in a plea. Allegedly responding to such threats, Lyman Faris, who was accused in 2003 of threatening to blow up the Brooklyn Bridge, pled guilty to immigration fraud. Days later, Ali Saleh Kahlah al-Marri, who had been arrested in 2001 on charges of document fraud, refused to plea bargain, virtually daring authorities to reclassify him as an enemy combatant. He was, in fact, then placed in military custody without access to a lawyer, where he remains today, a potent symbol for any defendant or defense lawyer who cares to look.

The use of such “leverage” — itself completely outside the normal justice system — would at any other moment have qualified as an obvious kind of extra-legal coercion. While plea bargains are certainly useful tools with which prosecutors can obtain information, the question needs to be asked: If there is coercion, can whatever information is obtained be trusted? Or are we here facing a very pale version of the more directly coercive and illegal methods used against alleged terrorists at our detention centers in Guantanamo and other places not on American soil?

Of note also is the failure of DOJ prosecutors to tie many of these cases directly to terrorism. In the Portland case, for instance, seven men were arrested on material support charges. Two of the men, Patrice Lumumba Ford and Jeffrey Leon Battle, were the main focus of the government’s indictments. “Evidence” came largely from secret FISA (Foreign Intelligence Surveillance Act) warrants. FISA and its secret courts were originally designed to regulate the FBI’s spying by distinguishing between counterintelligence operations and persecution of the government’s political opponents.

The Patriot Act and post-9/11 court decisions have, in effect, eliminated the requirement that FISA surveillance — wiretapping, searches, and otherwise — be primarily for intelligence-gathering as opposed to criminal investigatory purposes. By jettisoning that standard, Congress and the courts now permit the government to avoid the strictures of the Fourth Amendment and ordinary wiretap statutes by simply declaring anything, no matter how flimsy or marginal, is for intelligence purposes. Indeed, under the new standards, FISA warrants have mushroomed at an alarming rate; and the public sees only the tip of the iceberg, since FISA warrants and their fruits never see the light of day unless they are used in a criminal prosecution — which represent only an infinitesimal fraction of the total number of FISA wiretaps and searches.

Nonetheless, government prosecutors, evidently worried that new post-9/11 Bush administration rules extending FISA requests to terrorism cases might sooner or later be challenged as
unconstitutional, again offered plea bargains. The defendants agreed. Terrorism-related charges against Battle and Ford were dropped and each was sentenced not to life for “terrorism,” but to 18 years for “treason”; the other five defendants pled on lesser charges. Despite the convictions, the administration failed, as it had failed in the Lackawanna case, to link the accused directly to a terrorist conspiracy.

The Detroit case, hailed at one point as the ultimate showpiece in the legal war on terror, now stands as the greatest rebuke to the Bush administration’s prosecution of alleged domestic terrorists. In June 2003, four Arab men were convicted of providing material support for terrorism and of conspiring to engage in fraud or the misuse of visas, permits, and other documents. Their conviction was, however, overturned in July 2004, on the grounds that the prosecution had blatantly withheld exculpatory evidence from the defense — in this case, a videotape and photos. Though the government is currently once again trying to prosecute two of the defendants, it is doing so on the lesser charge of “insurance fraud.”

The kinds of mistakes prosecutors have made in cases billed as important to national security may or may not have been intentionally fraudulent, but they certainly suggest signs of administration frustration with the very idea of using the courts to combat terror. How regularly, we should ask, are prosecutors rushing into court without solid cases, pressured to get results in a manner similar to the way the Pentagon pressured the military to obtain information from detainees in Guantanamo and Abu Ghraib? Has a fear of being accused of incompetence in the war on terror merely led to more incompetence?

In only one of the President’s cases, as far as we know, did significant information come from the plea bargaining process. In the Seattle case, James Earnest Thompson, who goes by the name Earnest James Ujaama, was alleged to have attended al Qaeda training camps and indicted on charges of conspiring to set up an al Qaeda terrorist training camp in Oregon. In the end, he pleaded guilty on the lesser charges of bringing money, computer equipment, and a recruit to the Taliban. His plea was entered in exchange for his cooperation in terrorism investigations. In particular, he is alleged to have given evidence on al-Masri, a terrorism suspect being held in British custody.

Overall, despite all the hype, the Department of Justice’s record in terrorism cases is unimpressive indeed and even that record now faces a new hurdle — if information, however paltry, has been gained from suspects by illegal coercion or, in the case of suspects held abroad, through torture, it may prove inadmissible in future court cases against other suspects. This will be yet another setback in the legal confrontation with terrorism.

Perhaps this paltry and flawed record can be explained by the administration’s well known lack of belief in the importance of law enforcement in the war on terror. As Bush suggested in his last State of the Union Address, and other top officials have emphasized elsewhere, the war on terror is not supposed to be about law enforcement at all but about the use of force, about taking the fight to the terrorists by whatever means are necessary outside the United States. Another reasonable conclusion might be that, for all the color-coded alerts we’ve lived through, there just aren’t that many terrorists among us — at least not Al Qaeda related ones.

Terrorists do indeed exist who would like to do great damage to the United States, but convictions like those in the President’s cases are generally less than helpful in the defense against them. If anything, they lull Americans into a false sense of security, into a sense that important terrorists are indeed being convicted and jailed for crimes or plans of significance. In the meantime, most of these cases represent, at best, sloppy prosecutions; at worst, fraudulent ones. In all of them, there is a powerful sense of apparent desperation and hype, of prosecutors flailing about as if there were nothing more important than simply declaring, “Yes, we have found sleeper cells; yes, there is danger in our midst; yes, we are winning this war in the homeland.”

The fact is that the political expediency of the war on terror has undermined the strategy of an effective pursuit of terrorists. The rush to prosecution, the pressure to get convictions, even the holding of detainees without charging them, speaks more to politics than to justice, more to appearances than substance. It is time for the courts to assert their professionalism, to prosecute alleged terrorists carefully, without a rush to judgment, and in so doing to help the legal war on terror take its rightful place in the annals of American jurisprudence.

Karen J. Greenberg, coauthor of The Torture Papers: The Road to Abu Ghraib and the Executive Director of the Center on Law and Security at the NYU School of Law. The Center has just produced a “Terrorist Trial Report Card.”

Copyright 2005 Karen J. Greenberg

This piece first appeared, with an introduction by Tom Engelhardt, at Tomdispatch.com.

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