Ethical Issues in Defending a Terrorism Case: Stuck in the Middle

AuthorJoshua L. Dratel
Pages65-72

Page 65

Professor Bruce Green, our moderator, talked about ethical issues which are important for the criminal defense attorney. He also addressed ethical issues from the perspective of the prosecutor. However, for criminal defense attorneys, particularly in terrorism cases, there are unique and unprecedented conflict issues that arise, and anybody who works in New York experiences such conflicts to a greater degree.

In fact, I participated in the Embassy Bombings case by representing one of the four defendants. We tried that case for five months in early 2001. The sentencing was scheduled at one time for September 17, 2001, and that date fortunately was put off, but it did not really matter. During that period of time we ran into numerous conflicts that you do not have in an ordinary case-------as a citizen, as a lawyer, as an officer of the court, or as someone duty-bound to zealously represent your client. There are a tremendous number of conflicting issues. For example, imagine yourself running from the falling debris of the World Trade Center, and at the same time you are representing someone in an Al-Qaeda conspiracy. What do you do after that?

I also had the unique position of being subpoenaed as a government witness to a jail assault by a codefendant in our case. The codefendant stabbed a Metropolitan Corrections Officer in the eye, blinded him, and caused brain damage. He was going to be tried, and I was a subpoenaed government witness because I was on the floor visiting my client at the time the stabbing occurred. So, when you talk about these kinds of conflicts, you really go off the chart. And it is real. Al-Qaeda is not a myth. Government overreaching is not a myth, and the lawyer is stuck right in the middle.

Green talked about the War on Terrorism, which did not really begin on September 11, 2001-------it began significantly earlier. However, this is not the forum to address the historical aspects of the War on Terrorism. But, there are a variety of different regulations and statutes that the government has used in terrorism cases, making it extraordinarily difficult for criminal defense attorneys to adequately represent their clients. I will list them and touch on them briefly.

Page 66

First, the government has used the Special Administrative Measures ("SAMs"),1 which were not designed for terrorism, but were designed for a Latin Kings leader who was directing his illegal operation from prison. The Bureau of Prisons and the Department of Justice devised these SAMs, which apply to those in pretrial custody, those who have not yet been convicted but are merely charged with a crime, and to those convicted. The Latin King had already been convicted.

But SAMs were applied to five defendants in the Embassy Bombings case. One defendant, who was cooperating with the government, was not under the SAMs. Ironically, he was the most dangerous defendant because he provided security for Osama bin Laden to get from Afghanistan to Sudan. He was the person who cased the United States Embassy in Nairobi. He was the person who, at his guilty plea, said that he took the photographs of the embassy driveway to bin Laden, who said, "Oh, here's where a truck will go."

So, this was the person who was not under the SAMs only because he was willing to cooperate with the government. Yet he was a double agent. He was a Green Beret. Then he went back to Al-Qaeda although he was always a member of Egyptian Islamic Jihad. In any event, it showed the arbitrariness of how the government operates in these situations. The government broadly imposed the SAMs on everyone else in the case, even...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT