Ethical Issues in Defending A Terrorism Case: How Secrecy and Security Impair the Defense of a Terrorism Case

AuthorJoshua L. Dratet
PositionHe is President-Elect of the New York State Association of Criminal Defense Lawyers

    Joshua L. Dratet - Joshua L. Dratel is a practicing attorney in New York City. He is President-Elect of the New York State Association of Criminal Defense Lawyers, and former Chair of its Amicus Curiae Committee. He is also a member of the Board of Directors of the National Association of Criminal Defense Lawyers, and Co-Chair of its Amicus Curiae Committee, and its Select Committee on Military Tribunals. He is a member of the Capital Punishment Committee of the Association of the Bar of the City of New York. He is a 1978 Magna Cum Laude graduate of Columbia College and a 1981 graduate of Harvard Law School.

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My involvement as cocounsel for one of the defendants in the Embassy Bombings case1 was an atypical experience at the time. The case concerned an alleged Al Qaeda conspiracy to kill United States nationals, and included the August 7, 1998, bombings of the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. The defendants were indicted in 1998 and tried in the first half of 2001 in the Southern District of New York. However, since September 11, 2001, it has become all too typical; prosecutions characterized as "terrorism-related" have become far more common in federal courts nationwide. Thus, the elements and aspects of terrorism-related prosecutions discussed in this article no longer constitute a phenomenon, but are repeated in cases throughout the federal system.

The criminal defense lawyer assumes a unique role in even the ordinary case; he is the only person in the justice system whose sole obligation and loyalty is to the defendant. While objectivity is valuable, and certainly advisable, in the preparation and analysis of any case, the criminal defense lawyer's duty is purely subjective: advancing the best interests of the client. This duty has the capacity to create tension in any case in which the crime charged is nefario us and the defendant unsym-pathetic. When the defendant is an accused terrorist, however, those conflicts that the criminal defense lawyer's role engenders are multiplied exponentially and become substantially more difficult to navigate.

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In cases involving terrorism, the stakes are, of course, potentially far more significant than in the ordinary case. The allegations against the defendant do not suggest discrete harm, but rather a threat to entire populations and to civic security as a whole. The attorney himself may be within the defined class of victims-i.e., "all Americans around the world"-whom the defendant is alleged to have targeted. Moreover, while it is frequently easy enough to rationalize vindicating the statutory and constitutional rights of a defendant who is alleged to have, or actually has, committed morally repugnant criminal offenses-although it is sufficiently difficult to convince a court or jury to do so-even the criminal defense lawyer is presented with competing considerations when his client is not just a criminal defendant, but also an alien (or naturalized citizen) officially designated as the "enemy" in an armed conflict.

Indeed, even befo re September 11, terrorism prosecutions such as the Embassy Bombings case were infused with the strategic and tactical aspects of global conflict that transcended the criminal justice process. Yet, the defense lawyer was, and continues to be, placed squarely in the middle, tugged in opposite directions by his polar obligations as advocate and citizen. The presence of all these factors results in a sharper appreciation of the essence of a defense lawyer's responsibility, as well as of the panoply of protections and threshold level of treatment and accommodation that criminal defendants enjoy in the average case, but which are denied even to counsel in terrorism cases. These protections include the conditions of confinement, the ability to investigate the case adequately, and the ability to communicate with the client fully about the facts of the case.2

Three elements in terrorism cases interfere mightily with the defense lawyer's ability to perform his constitutional duties and the client's exercise of his Fifth Amendment right to contribute to his defense and his Sixth Amendment right to confront the evidence against him:

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  1. the Special Administrative Measures (the "S.A.M.s")3 that prescribe the conditions of confinement and communication;

  2. the Foreign Intelligence Surveillance Act ("FISA"),4 which authorizes clandestine surveillance-eavesdropping, search and seizure, and pen register/"trap and trace"-for purposes of gathering "foreign intelligence" within the confines of the United States; and

  3. the Classified Information Procedures Act ("CIPA"),5 which governs access to classified information and its use and admission in criminal proceedings.

These elements present a daunting array of professional, moral, and ethical dilemmas. Ultimately, they can and should be resolved in a manner consistent with the mandate of a defense lawyer-to represent the client as vigorously as possible within the confines of the rules. This resolution also provides the best way for the criminal defense attorney to fulfill his role as citizen in the current environment: by insisting that the Constitution not be ignored in these cases, but instead applied with maximum vigor. In this fashion, the criminal defense lawyer performs the most effective service to his client, his profession, his country, and the Constitution-not only in demanding the latter's application to the specific case at issue, but also in providing a bulwark against the leaching of secrecy and security provisions that dominate terrorism cases into ordinary criminal investigations and prosecutions.

I The Special Administrative Measures (the "S.A.M.s")

The S.A.M.S, "authorized by [Bureau of Prisons] regulations for the confinement of particularly dangerous detainees[,]"6 represent the most onerous conditions of confinement any pretrial detainee has endured in the modern federal criminal justice system. Their harshness eclipses even the conditions for convicted prisoners and for inmates, pretrial or otherwise, who have committed infractions or violent conduct while in custody.7

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The S.A.M.S were not necessarily developed in connection with terrorism cases or defendants. Instead, they first appear in the case law in the context of a convicted Latin Kings leader who had a history of ordering murders from prison.8 The S.A.M.S severely restrict the ability of an inmate to communicate with the outside world and constrain counsel with respect to contact with third parties on the defendant's behalf. The measures also require the defendant to be segregated from the rest of the population at the detention facility and to be denied many of the privileges ordinarily available to inmates, other than those who have committed administrative or violent infractions. Also, mail and telephone calis are closely monitored, exercise is extremely curtailed, and the defendant is held in solitary confinement.9

These and other similar provisions of the S.A.M.S have a devastating impact on the defendant and, as a result, adversely affect both the attorney-client relationship and the ability to prepare and present a viable defense to the charges. Given the arbitrariness with which the S.A.M.S are imposed-without any distinction between those accused of violence and those accused only of conspiracy and/or facilitation-it is natural to conclude that they constitute a deliberate and strategic interference by the government with both the attorney-client relationship and the defendant's Fifth Amendment right to a fair trial.

The S.A.M.S operate in tandem with the Bail Reform Act,10 as almost all defendants in terrorism cases are detained pending trial. In fact, the instances in which bail has been granted are the rare exception.11 Security issues are treated as paramount in the context of the "danger to the community" prong of 18 U.S.C. ß 3l42(e), and this treatment acts as a natural precursor to and justification for implementation of the S.A.M.S against a particular defendant.

The S.A.M.S exert their adverse effects on a variety of irnportant leveis. The mental and physical deterioration of the client is palpable Page 85 after only a short period of time. The complete isolation, lack of exercise and emotional and mental stimulation, all manifest themselves clearly, steadily, and increasingly over time. The client has difficulty concentrating, becomes irritable, listless, demanding, and uncooperative, progressively loses appetite, which further impairs his health, and frequently develops physical and somatic symptoms of the pervasive stress under which he suffers. The literature is quite definitive on this subject and is specifically corroborated by the behavioral and cognitive degeneration of the client.12

The S.A.M.S also distract the client from the substance of the case. Instead of concentrating on defending against the charges in the indictment, including perhaps preparing to testify, which requires an extraordinary amount of time and attentiveness, the defendant is preoccupied with ameliorating the conditions of confinement.

The problem is compounded by the client's isolation. Since the attorney is the only person with whom the client has contact, the attorney is the only outlet for the client's frustration. Even if that does not create friction between them-the attorney's failure to achieve any improvements in conditions or his unwillingness to treat such matters as priorities can be met with animosity and resistance to discussing anything else-the attorney is engaged in a selfdefeating process, albeit for a number of sound reasons.


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