Last month, the U.S. Supreme Court reversed the Bush administration, ruling that suspected terrorists at Guantánamo Bay could challenge detention in federal courts. Yet as detainees fight for greater legal protections, trials like theirs might erode existing protections for civilian defendants whose cases have nothing to do with terrorism.
In an upcoming article, University of California, Berkeley law professor Charles Weisselberg explores how prosecutions in the “war on terror,” by lowering standards for conviction or easing rules for admissible evidence, may change the way judges and prosecutors deal with people accused of federal crimes.
In the debate over what to do with suspects inhabiting the gray area between crime and military conflict, Weisselberg says, such adverse effects are often ignored.
After the 9/11 attacks, the United States military and intelligence agencies rounded up thousands around the world who they identified as potential threats to Americans.
In some cases, there was specific evidence of their involvement in the 9/11 plot or another impending attack. In the past, the government had successfully prosecuted many such suspects in traditional Article III federal courts, and since then, thousands have been convicted, often for “support” crimes like passport fraud.
Yet many detainees’ sole transgression was joining al-Qaeda or finding themselves in Afghanistan when U.S. soldiers invaded. Standard domestic prosecutions would likely have rested on shaky ground, but international laws of war didn’t deal well with them, either.
“In regular war, the other guy is wearing a uniform. Here, the status is a more contested issue. Assuming you have somebody who’s a member of al-Qaeda, who had nothing to do with 9/11 but is generally hostile to the U.S., it’s not necessarily clear you have any crimes you could get them for,” said Tung Yin, a law professor at the University of Iowa.
The Bush administration opted for extreme caution. The executive branch labeled some prisoners “enemy combatants,” holding many without trial or prosecuting them in military commissions, claiming that such actions were necessary to protect American citizens. As Justice Antonin Scalia wrote in dissent last month, letting Guantánamo prisoners argue before civilian courts would “make the war harder on us. It will almost certainly cause more Americans to be killed.” Among administration supporters and critics, these debates are often couched in the balance between liberty for the accused and security for the population, of abiding by the rule of law versus the at-times impractical standards of evidence in civilian courts.
Weisselberg, however, believes the judicial ripple effects may reach beyond accused terrorists, with criminal law and procedures from terrorism trials bleeding over to federal cases. Across the political spectrum, others have raised similar concerns. Current Attorney Gen. Michael Mukasey argued in a 2007 Wall Street Journal op-ed article that adapting conventional legal rules to deal with terrorists could “infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law.”
That commentary helped inspire Weisselberg to examine how it might happen. Here’s one scenario: The U.S. Supreme Court has often pointed to lengthy interrogations — as short as eight hours in one case — as key factors in finding the resulting statements involuntary. Those decisions might be contradicted by a terrorism trial in which a judge allows statements made during a monthslong interrogation, setting a precedent for long interrogations by, for example, local cops.
This hasn’t quite occurred yet, but the case of alleged “dirty bomber” Jose Padilla came close. Lawyers claimed Padilla was held for more than a year without access to counsel and that statements he made were involuntary. While prosecutors agreed not to introduce the statements at trial, they reserved the right to use them to call Padilla’s credibility into question on the witness stand.
Similarly, judges may interpret terrorism-focused laws in ways that affect other kinds of defendants. Ahmed Ressam, an al-Qaeda-trained Algerian, was stopped at the Canadian border on his way to detonate explosives at Los Angeles International Airport. Federal prosecutors charged him with, among other counts, carrying explosives “during the commission of any felony,” adding 10 years to his sentence.
The U.S. Court of Appeals reversed that conviction because the felony he was charged with — making false statements on a customs declaration — bore no relationship to carrying explosives.
Mukasey appeared before the Supreme Court in May, arguing that the government should have the flexibility to add the explosives charge, related or not. Ressam’s lawyer said that such a broad construction would allow prosecutors to add the count to anyone charged with a felony, offering the extreme example of a person carrying a can of gasoline while using $150 in illegal food stamps. The government prevailed.
“It was an interpretation in favor of the government of a substantive law, with an eye to terrorism-related prosecutions,” Weisselberg said.
Already, provisions of the USA PATRIOT Act have been used in unrelated prosecutions, such as in cases involving child pornographers, and some fear assistant U.S. attorneys will extend the strategies to less egregious crimes.
“You should expect the same actors to be involved, the same investigators and prosecutors. If you see it work for terrorism, it might be used in other areas,” said Robert Chesney of Wake Forest University School of Law.
To be sure, some of this innovation could be advantageous. Chesney noted that the Patriot Act gave investigators the authority for roving wiretaps following an individual, as opposed to a specific phone.
It’s difficult to document such trends, as even categorizing cases as “terrorism-related” can be subjective. But history has shown their existence. Tens of thousands of “war on drugs” cases led to rulings on issues ranging from searches of public school students to when the government must divulge evidence of racial discrimination, though Weisselberg acknowledges the scale of that campaign is larger than anti-terror efforts.
Perhaps more relevant, in a study of cases between 1941 and 2001, Northwestern University’s Lee Epstein found that during wartime, the Supreme Court is 10 percent less likely to rule in favor of a litigant claiming infringement of his rights.
If terror-related decisions are likely to infect average criminal trials, should the government try suspected terrorists outside the Article III system? There’s little agreement on an answer – and for many, the issue is of little concern.
Mukasey and the Bush administration believe many should be prosecuted by military commissions. The University of Utah’s Amos Guiora is among several legal scholars proposing separate domestic terror courts that would give suspected terrorists only some constitutional protections. Loyola Law School’s David Glazier believes we should employ laws of armed conflict to humanely detain suspected terrorists until they can be tried in federal court.
Weisselberg doesn’t think restructuring adequately addresses the predicament. “I don’t think there will be a way to protect U.S. law against these influences, even if we were to remove many cases from the federal courts system,” he said.
The best way to deal with seepage may be to make sure judges, prosecutors and citizens know that terrorism may alter criminal law and procedure. “We need more sunshine on the actual substance of what we’re doing,” Chesney said.
Despite his worries, Weisselberg hopes these theories won’t come to fruition.
“I’d be happy,” he said, “to be proved wrong.”
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