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Crossing the threshold (continued)

THE EVISCERATION of habeas corpus, creating a shadowy network of military brigs and prison camps, would also have a profound impact on the part of the justice system the public does see. It would turn those trials into show trials rather than true adversarial legal proceedings in which defendants and their lawyers can actually question the governmentís evidence and present evidence of their own.

In Arthur Koestlerís powerful novel Darkness at Noon, set during the Soviet show trials of the 1930s, the protagonist is accused of crimes against the state and is given a choice by his jailers. If he signs a confession and admits wrongdoing, he will receive a public trial. But if he refuses to cooperate, his case will be dealt with "administratively" and out of sight. This two-track justice system, in which "problem" cases were whisked from view and dealt with in secret while public trials merely paraded the coerced guilt of the "accused," converted the Soviet Unionís justice system into an appalling masquerade. And it is this kind of two-track system that habeas-free enemy-combatant detentions threaten to create. The American and Stalinist Soviet justice systems are, of course, far from identical, but it is dangerous to adopt a device that totalitarian governments have found so useful.

This pernicious process begins prior to the trial, when the prosecutors seek a confession. In the past, prosecutors could use the threat of long prison sentences or even the death penalty to convince defendants to plead guilty rather than risk a trial. With the threat of enemy-combatant detention hanging over plea negotiations, however, prosecutors now have a far more potent coercive tool to use against those suspected of terrorism-related crimes. By merely declaring a person an enemy combatant, the government can detain a citizen or noncitizen with minimal, if any, judicial review and without having to prove anything. For the defendant who is offered a plea bargain, the implicit choice is thus no longer between a plea bargain and a public criminal trial in accordance with the Bill of Rights, but rather between a plea bargain and the legal black hole of indefinite detention. Under this paradigm, there will be few, if any, public trials of terror arrestees, but more plea bargains and, for those who donít recognize an offer that cannot be refused, more enemy-combatant detentions. Two recent cases ó a plea bargain achieved under the threat of enemy-combatant status, and a criminal prosecution that became an enemy-combatant detention in lieu of trial ó illustrate how this Soviet-style system operates.

Consider the case of Iyman Faris. In March 2003, federal prosecutors secretly arrested the 34-year-old Faris, a naturalized US citizen from Kashmir accused of plotting to destroy the Brooklyn Bridge and derail a train in Washington, DC, held him incommunicado for two months, and then made him an offer: he could cop a plea and cooperate with the FBI, or they would designate him an enemy combatant. Faced with disappearing into the black hole of indefinite military detention, he accepted the certainty of a plea bargain and a long sentence. Farisís lawyer, J. Frederick Sinclair (himself a former federal prosecutor), cooperated with prosecutors to draft a plea agreement in which Faris pled guilty to "material support of terrorism," signed a five-page "statement of facts" regarding the alleged plot, and waived all rights to obtain his case records under the Freedom of Information Act or to appeal his sentence or conviction. These waivers make it nearly impossible for anyone to determine whether the statement Faris signed is true. Indeed, Faris told interrogators in June that the "facts" were a lie. Jail authorities then medicated him with antidepressants and antipsychotics. Nevertheless, Faris stood up during his sentencing hearing in October to insist that he had pled guilty because of pressure by prosecutors and federal agents. He was sentenced to 20 years.

Within days of announcing Farisís plea bargain, the Justice Department showed what happens to those who refuse to cooperate. Qatari student Ali Saleh Kahlah al-Marri, accused of lying to the FBI and engaging in allegedly terrorist-related credit-card fraud, tried to call the prosecutorsí bluff by pleading not guilty, presumably believing he would be able to defend himself successfully before a jury of ordinary Americans in a public trial. His lawyer, Lawrence Lustig, was optimistic, telling the New York Times that he and his client "thought he had a powerful defense." But one month before al-Marriís scheduled trial, the Justice Department announced that "national security interests" required that he be held as an enemy combatant. He is now in military custody, with no access to his lawyer.

This pair of cases illustrates how prosecutors can use the threat of enemy-combatant detention to condition a prisonerís access to the civilian justice system upon the prisonerís agreement to plead guilty and read a government script. What kind of trial is it when the alternative to going along with the script is rotting in an enemy-combatant twilight zone? Before 9/11, prosecutors were assumed to have no such power over anyone, either American citizens or foreign nationals.

Absent a trial, the government is never forced to produce evidence supporting its accusations. As they did with both Faris and al-Marri, prosecutors can publicize sensational accusations, issue dark hints about secret evidence, declare another victory in the war on terror, and then move on to the next prosecution without ever having to substantiate anything.

Indeed, prosecutors have another incentive to evade courts and juries: not all "terrorism" accusations to date have survived the scrutiny of dedicated, impartial jurors. Take, for example, one of the few recent cases of alleged terrorism to reach a jury, in which federal prosecutors accused four Arab immigrants in Detroit of providing material support for terrorism and conspiring to engage in fraud or misuse of visas, permits, and other documents. During the trial, prosecutors had little hard evidence, instead depending on hazy suggestions of terrorist ties. They made much of the fact, for example, that the defendantsí apartment contained 100 audiotapes of lectures by a Muslim cleric, which they described as extremist advocacy for holy war, and of home videos and sketches that they claimed were attempts to case sites like Disneyland and the MGM Grand in Las Vegas. However, according to one juror quoted in the New York Times, the jury did not allow this cloud of vague suspicion to affect its deliberations: "We totally separated 9/11, the war on terrorism, from what we were doing." This showed in the verdicts: of the four defendants, the jury acquitted one entirely, found one guilty only of document fraud, and found the other two of guilty of both document fraud and the terrorism-related charges. When DOJ officials try to steer terrorism cases away from jury trials, they claim that public trials might compromise national security and intelligence-gathering methods. But it is hard to ignore the suspicion that their real concern is that ordinary, conscientious jurors might not buy the DOJ line uncritically. After all, the courts have many years of experience conducting public jury trials of cases with national-security implications, in which closed sessions are used only for the presentation of evidence that the judge rules too sensitive for public display.

Of course, sometimes even the scrutiny of jurors is not enough to assure the triumph of truth. In the Detroit case, the two terrorism convictions have been tainted by prosecutorsí apparent efforts to stretch the facts further than ethically possible. Revelations surfaced in December that during the trial, prosecutors withheld from the defense important evidence that cast doubt on the reliability of the governmentís key witness, a scam artist from Morocco who was a former roommate of the defendants. According to a letter from the witnessís cellmate in jail, intercepted by prosecutors, the witness described to his cellmate "how he lied to the FBI, how he fooled the Secret Service agent on his case." That prosecutors felt it necessary to stoop to such misconduct indicates that many of these "terror" prosecutions are so flawed and lacking in real evidence that the government has a huge incentive to avoid the criminal-justice system.

Full-dress trials are already becoming rare in terror cases. Even before the Faris case, prosecutors were pursuing plea bargains rather than trials. Three of the most prominent terrorism cases ó Richard Reid (the "shoe bomber"), John Walker Lindh (the "American Taliban"), the "Lackawanna Six" (described by prosecutors as a sleeper cell), and James Ujaama (a Seattle man accused of ties to Al Qaeda) ó ended when the defendants agreed to plead guilty. And, like the Faris plea bargain, some of these earlier plea bargains were struck under coercive threats of imposing "enemy combatant" status. When discussing the Lackawanna case with the Washington Post, US Attorney Michael Battle said that although his office never explicitly threatened the defendants with "enemy combatant" status, all sides knew the Defense Department had a "hammer" on the table: "We are trying to use the full arsenal of our powers," he told the Post.

Moreover, for the few cases that do not end in a plea bargain, prosecutors retain the right to yank the case from public view and return the defendant to military detention, even after the trial has already begun. Take, for example, the ongoing case of Zacarias Moussaoui, the alleged "20th hijacker" in the September 11 plot. When Moussaoui requested access to three potential witnesses who are in US military custody, prosecutors balked, refusing to obey the court order granting Moussaoui such access because, prosecutors asserted, it would "necessarily result in the disclosure of classified information." Unless the prosecutors are permitted to continue the trial without producing the witnesses, government officials have indicated that they may abandon the criminal prosecution and instead subject Moussaoui to a military tribunal.

Besides, there is nothing under this new system to stop prosecutors from re-imprisoning the defendant even after a trial in which the defendant has prevailed. In civilian criminal prosecutions, the Fifth Amendmentís prohibition against double jeopardy would prevent such an abuse. But no such prohibition exists for post-acquittal enemy-combatant" detentions. Thus, a terror suspect could stand trial and be acquitted by a jury, but subsequently be forced back into military custody as an enemy combatant. This power to re-arrest after acquittal recalls one particularly noxious historical example: in Nazi Germany, on the rare occasions when the Volksgerichtshof ("Peopleís Court") failed to find a defendant guilty, the Gestapo would often take the prisoner into "preventive detention" immediately after the verdict ó sometimes even before the defendant had left the courtroom. A nation need not be as deeply evil as Nazi Germany to make a mockery of justice by embracing such a device.

This is the broader consequence of the assault on habeas corpus. The Justice Department is creating a two-track justice system that renders the normal criminal-justice process largely irrelevant for terrorism defendants, shunting difficult defendants into secret, unreviewable military custody and reserving increasingly rare public trials for those few cases in which conviction or, more likely, a coerced and scripted guilty plea, is almost certain because the DOJ has rewritten the rules.

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Issue Date: March 5 - 11, 2004
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