Defending Mohammad: Justice on Trial.

• Author: Davies, Sharon L.
• Position: Book Review

DEFENDING MOHAMMAD: JUSTICE ON TRIAL. By Robert E. Precht. Ithaca: Cornell University Press. 2003. Pp. xi, 183. $22.95.

On my drive into work recently I found myself behind a Ford pickup truck and noticed its bumper sticker: "When the going gets tough, I get a machine gun." Not a doctor. Not a counselor or mediator. Not a shelter for cover. Not the wisdom of a favored advisor or a proven friend. But a machine gun. How odd, I thought, to prefer a weapon incapable of identifying with any precision, any careful thought, where the enemy of the wielder of it might actually be hidden. A weapon as apt to injure non-targets as targets. A weapon mindless of its unintended consequences, and one that exhibits no inkling that such acts of aggression, whether capable of justification or not, are more likely to be met with hatred and more violence than concessions of desert and a laying down of arms. How odd, and yet how disturbingly familiar.

I wondered about the thought processes that might have led the driver of the truck to place such a sentiment on his bumper for all the world to see. What emotion, what belief might lead a person to conclude that, out of all the options available, a machine gun was the right choice to deal with goings tough? And then I had it: Fear.

To someone fearful of being seriously injured or perhaps even killed by another, I supposed, a machine gun could appear to be a perfectly reasonable weapon of choice. Perhaps especially if the other was a stranger, with unfamiliar ways, whose very lack of familiarity, of sameness, seemed to make him unpredictable, threatening, worthy of suspicion and distrust. Even more so if there were many such "others," who by their very numbers became an even greater threat, perhaps particularly if they lurked in places unknown, amidst innocents, to make their detection all the more difficult--and necessary. In the mind of the machine gun wielder, such a voluminous and elusive prey might warrant the choice of this particular firearm.

If so, why then not a machine gun? Certainly such a weapon would intimidate most would-be transgressors. Might not that deterrence value by itself provide sufficient justification for choosing it rather than some other less threatening approach? And if it was used, its impressive fire power would certainly be more likely to bring down its intended foes than would a weapon demanding a more deliberate aim, a more precise calculation of who was and who was not sufficiently threatening to deserve to be a target. True, it might ensnare some innocents as well, but the gravity and imminence of some threats justify the incursion of some unwanted costs.

The problem with this instinct, of course, is that history warns that, for all our strengths and talents, we may not be particularly skilled at assessing the gravity of threats and telling those who present real threats from those who don't. This is especially true in moments of national crisis and heightened public insecurity. Indeed, fear has been at the heart of most of history's misjudgments. It was fear that convinced so many in the 1940s, including the President, (1) the Justice Department, (2) and the nation's highest court, (3) that the forced relocation of Japanese Americans into camps was a good and constitutionally defensible idea. We have since rethought the wisdom of that. (4)

It was also fear that lay at the heart of the infamous Palmer Raids. the government's answer to a series of bombings that terrorized the country in 1919, including a mail bomb sent to Supreme Court Justice Oliver Wendell Holmes and another that detonated outside the home of then Attorney General A. Mitchell Palmer. (5) The nation's answer included a hasty piece of legislation that authorized the nationwide round-up of 6000 foreign nationals; individuals who were arrested not on suspicion of involvement in the terrorist bombings, but on charges of associating with the Communist Party and the Communist Labor Party. (6) This was a blunt approach, and one that promised to sweep up far more individuals not connected to the bombing spree than to it. It was an answer calibrated to the heightened level of the nation's fear, not the reality of the threat.

In his book Defending Mohammad: Justice on Trial, Robert E. Precht (7) worries a lot about fear--specifically, how fear might have "doomed" his client Mohammad Salameh's chance for a fair trial in 1993 when Salameh, an illegal Palestinian immigrant, was charged along with three others (Nidal Ayyad, Mahmoud Abouhalima and Ahmad Ajaj) (8) with planning and carrying out the first bombing of the World Trade Center (pp. 17-18). By any standard, the first bombing was a crime of intense national interest, and if Salameh's lawyer had any doubt about that, he was disabused of it when, following his first appearance as Mohammad's counsel, reporters literally pinned him against one of the stone pillars outside the Manhattan federal courthouse and peppered him with questions (p. 7). The bombing left six dead, injured more than one thousand others, and destroyed hundreds of millions of dollars in property (p. 64). Thus public calls for an aggressive investigative response in the wake of the attack were hardly surprising, and they were voiced well before the last body was discovered and removed from the debris (p. ix). The throngs of reporters who packed the courtroom throughout the trial were testament to the great interest in both the crime and the four defendants charged with involvement in it.

Robert Precht and I did know each other, but we were not friends, when he tried the case that is the subject of his memoir, Defending Mohammad. Indeed, at the time, there was little chance that Precht and I would have seen eye-to-eye about much about the case. including the rightness of the accusations, the fair-mindedness of the prosecutors assigned to the case, and the manner in which United States District Court Judge Kevin Duffy presided over the trial. (9) For in 1993, when Precht, an experienced Legal Services attorney working for the elite federal-defenders unit in Manhattan, found himself assigned to defend Mohammad Salameh (p. 3), I worked directly across the street as a federal prosecutor in the U.S. Attorneys Office for the Southern District of New York, the office responsible for Mohammad's prosecution. I was not involved in Mohammad Salameh's case, but I knew and admired the prosecutors who were. So I am quite sure that at the time of the trial neither Precht nor I would have predicted that, some ten years later, the editors of the Michigan Law Review would ask me to review the book that he would write about experiences as Mohammad's attorney.

But life is filled with wondrous Jungian synchronicities and unexpected surprises.

1. THE TRIAL

   One need not have been involved in the 1993 case to have a more nuanced perspective today on the significance of the first bombing of the World Trade Center. For one, as Precht explains so well in his book, the failure of the perpetrators of the first bombing to bring the tower down created for many a false confidence in the indestructibility of the imposing structures, a confidence that continued to their collapse on September 11, 2001. Although it was apparent at the time of the 1993 bombing that the perpetrators could have inflicted far worse damage and loss of life had the buildings been less resistant to attack, those familiar with the North Tower were not surprised that it withstood the explosion. After all, the towers had been well built; they had been designed by folks who knew enough about the unpredictable nature of human conduct to consider in advance the possibility that a plane, even a fully fueled 707 aircraft, might be flown into one of them one day. (10) The towers could withstand such an assault, its designers predicted, and the 1993 bombing seemed simply to prove the point.

   We know now, of course, that the buildings were not impervious. And, as a result, the "if onlys" that linger in the aftermath of the 9/11 attacks on the towers are likely to haunt us forever. "If only" we had realized that the towers were more vulnerable than we thought they were. "If only" we could have predicted that as icons they would be too tempting a target ever to be safe from additional terrorist attacks. (11) And perhaps, "if only" we had considered more carefully the significance of Mohammad Salameh's and his co-defendants' defiant cries of protest and anger when the jury pronounced its verdicts of guilt upon each of them: "Victory to Islam!" "Injustice people!" "God is great!" "Cheap people, cheap government!" (p. 162).

   It is tempting to respond to such defiance and remorselessness with a defiance of one's own. To assuage our own lingering fears about those who would do us such grievous harm with a lack of concern about the rights and treatment of those who fall (or even just might fall) within that group of enemies. It is tempting to get a machine gun. Such is the thought-bending power of fear. Rob Precht's powerful retelling of his experiences defending one in this group of enemies, however, invites us to reach for a more deliberative response. For what we do to our enemies says much not only about the principles against which we would measure ourselves, but the steel of our very belief, or lack of belief, in our own system of justice.

   1. Remembrances of a Defense Attorney

   Defending Mohammad is a fast-moving read, dotted with frequent, highly moving descriptions of the complex, often-emotional relationship between an accused and his counsel. The author has a knack for capturing the grey in human relationships, and his best success at this is when he invites his readers into the exchanges that occurred between him and his young client over the course of twelve months after he accepted the assignment to serve as Salameh's counsel (p. 3), found himself in the heady vortex of what would surely be the most high profile case of his...