Sua Sponte

• Author: Hon. James G. Carr
• Position: The author is a judge on the U.S. District Court for the Northern District of Ohio.
• Pages: 29-33

Published in Litigation, Volume 43, Number 2, Winter 2017. © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information

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29

The author is a judge on the U.S. District Court for the Northern District of

Ohio.

SUA SPONTE

A Judge Comments

HON. JAME S G. CARR

In “The Unique Challenges of Defending a Terrorism

Prosecution,” Joshua Dratel has provided a bird’s-eye a nd a

worm’s-eye view of what lawyers can exp ect when represent-

ing a defendant charged in a “ terrorism” case. I use quotation

marks deliberately. Relatively few of the case abst racts in the

Federal Judicial Center’s most recent compendium of all cases

brought under the material support a nd related statutes portray

a mature conspiracy or involve the comm ission of dangerous

acts. R.T. R, F. J C ., N S C 

S—S  C M C  (2015).

Instead, those t hat have even reached toddler stage have been, as

in the two “terror ism” cases I have had on my docket, nurture d

early on by government investigators .

To label defendants “terrorists,” as g overnment press releases

and the media commonly do, is, to say t he least, an overstatement,

much more often than not. It is, however, this hig hly prejudicial

and ill-fitti ng label that invariably attaches a nd sticks to the case

throughout its existence. It is a label, moreover, that defense

counsel can expect t he government to highlight repeatedly in

its approach to the case outside and inside t he courtroom. But

the press release, headlines , and breathless commentary that

accompany the indictment and a rrests are one thing; the risk

that the judge potential ly may be influenced, albeit only sub-

consciously, is anot her.

So, in addition to the unique and ma nifold other challenges

Mr. Dratel accurately describes that conf ront defense counsel,

there is one that he did not touch on: the effe ct on the judge of be-

ing at the center of a high-profile, attent ion-grabbing, and closely

observed—but typica lly wrongly labeled—“terrorism” case . This

is not a matter of the bias that we bri ng to the bench—which, I

believe, we are able to consciously shed when we step up to it.

It is, rather, the risk that results f rom being engaged during a

prolonged pretrial period a nd lengthy trial in a set ting in which

terms like “terroris t,” “terrorism,” “national securit y,” and “the

Global War on Terrorism” can be recurrent mot ifs. Even where

the jury rarely hea rs those terms, the judge will encounter t hem,

or variants of them , often, whether in briefs, exhibits, and oth-

erwise in sta ndard pretrial proceeding s or in ex parte hearings

under the Classified In formation Procedures Act. Indeed, t here

is a not-so-subtle underscoring th at occurs where the judge and

his or her staff undergo s ecurity clearance background che cks.

provide material support, a mong other things, in aid of a con-

spiracy to murder, maim, or kidnap overseas . Yet, section 2339A

does not require a specific identif ication of that conspiracy, or

of the victims, or proof t hat the defendant joined the conspiracy

or its aims in any m anner.

In addition, the effect ively unlimited nature of “material

support” has had serious Fi rst Amendment implications, as

the Supreme Court, in Holder v. Humanitarian Law Project, 561

U.S. 1 (2010), denied constitutiona l protection to even political

speech—for example, an op-ed ar ticle—if it is made in coordi-

nation with an FT O.

Another stat utory regi me, the Internat ional Emergency

Economic Powers Act, 50 U.S.C. §1705 et seq., prohibits es -

sentially any f inancial transactions , no matter how simple or

mundane, with persons or org anizations design ated by the

Department of the Trea sury as specially designated g lobal ter-

rorists (SDGTs) or FTOs without requiring ma licious or crimi-

nal intent.

These substantive aspec ts make terrorism offenses—which

just by the description of the cha rges themselves prejudice the

defendant—easier to charge and ea sier to prove than ordinary

offenses in the federal c riminal justice system.

The Gathering of Evidence

Among the most signif icant differences from normal crimi nal

cases that terrori sm cases present is in the manner in which

evidence is gathered—in some inst ances, by both the prosecu-

tion and defense. Chief among those d istinctions are certain

statutor y provisions that r egulate the acq uisition and admi ssion

of evidence that implicates national se curity. The advantage af-

forded the government as a result of the a symmetrical nat ure of

those provisions, and how t hey deviate from practice in ordinar y

cases, is c onsiderable.

The Foreign Intelligence Sur veillance Act. For example, the

Foreign Intelligence Surveilla nce Act (FISA), 50 U.S.C. §1801

et seq., constitutes a stat utory regime for wiretapping, search

and seizure, and collec tion of records wholly separate from the

ordinary cri minal justice authority gra nted by Title III of the

U.S. Code (18 U.S.C. §2518 et seq.) and tradition ally permitted

under the Fourth A mendment.

FISA offers the government bot h substantive and proce-

dural advantages . FISA demands only a diluted form of prob-

able cause—only probable cause, as cert ified by DOJ officials

and for practical purp oses unreviewable as a result, that the

target is an a gent of a foreign power. Thus far, in its nearly 40-

year history, this st andard has been impregnable to defense ef-

forts to review any of the u nderlying materials—t he warrants,

the applications (including aff idavits) for those warrants, and

those DOJ certif ications. Nor has any constitutional ch allenge (Continued on page 31)