Ordered Liberty

The Evolution of Terrorism Prosecutions: My Speech at the Federal Bar Council

Next month, we will mark the 24th anniversary of the 1993 World Trade Center bombing.

The prosecutions that followed, including the one I was privileged to lead against the terrorist cell of Omar Abdel Rahman (“the Blind Sheikh”), were pivotal in the development of American national security policy. Up until the 9/11 attacks, almost all of these prosecutions took place in the jurisdiction of the United States Court of Appeals for the Second Circuit.

On Wednesday night, I participated in a Federal Bar Council program on “The Second Circuit and Terrorism” along with former Attorney General Michael Mukasey (the former chief judge of the SDNY who tried the Blind Sheikh case), Judge Joseph Bianco (my former SDNY colleague who later served as a Deputy Assistant Attorney General in the Bush Justice Department), and Roger L. Stavis (who represented Sayyid Nosair, one of the principal defendants in the Blind Sheikh case) in a panel moderated by Fordham Law School Professor Karen Greenberg (who directs Fordham’s Center on National Security). Below is my speech at the start of the program.

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Since I don’t get back to my old haunts nearly as much as I’d like to, it is a thrill to be here in our grand courthouse in the Southern District of New York, among so many old friends and colleagues. It is a real privilege to participate in this panel on “The Second Circuit and Terrorism,” with people I’ve learned so much from over the last — I don’t even want to think about how many years have gone by. Let’s just say there was a lot more hair on my head, and a lot less of, well, me, when I first met most of them.

My role at the beginning of this evening is to give a brief overview of how terrorism prosecutions have evolved. What happened here in the Second Circuit, and particularly in the cases that originally sprung out of our SDNY office after the World Trade Center was bombed in February 1993, is ingrained in the foundation of American national security policy — both in terms of what the judicial system could achieve, and where other components of government needed to step up and fill security voids.

In addressing this topic, I’ve always thought it important to point out that when terrorism arrived in our homeland in the systematic way we have experienced it in the last quarter-century, nobody sat around the table and thought about how we should respond to it. There was no grand policy debate asking, “Is this a crime, or is it a war?” “Is our civilian process of criminal prosecution up to this, or do we need to resort to military justice and the ancient laws and customs of war?”

What happened, instead, was an explosion.

When a critical incident occurs domestically, regardless of whether it appears to be terrorism, a major accident, or a natural disaster, it is the first responders who answer the call — police, firefighters, emergency medical personnel, and the like. Back in 1993, we didn’t even think about the military or our intelligence community, which are restricted by various statutes and regulations from operating inside the homeland.

In the case of the World Trade Center attack, there was a quick determination that a bombing had occurred. In what seemed like the blink of an eye, we had six people in custody. Nobody thought about whether they were better understood as “defendants” or “prisoners of war.” Their arrests triggered due process protocols and speedy trial clocks. Within a couple of weeks, there were indictments.

While bail hearings were being held, discovery was being made, and trial preparation was underway, we learned that the same jihadist cell was preparing another ambitious attack against our City. Suddenly, we were simultaneously ramping up for trial and conducting a massive, anxiety-ridden undercover investigation — at the end of which, a dozen more terrorists were apprehended, starting the whole process over again.

No one had much time, at least in New York, to consider the implications of all this. From our perspective, we we’re not making national policy; we were a prosecutors working with our colleagues in the FBI, the NYPD, and all the Joint Terrorism Task Force agencies, to investigate violent crime plots and build criminal cases.

There were a number of difficult, novel issues that arose. The way in which we dealt with them, coupled with the fact that we were acquiring an understanding of the terrorists, and building an intelligence product by interviewing witnesses and suspects, turned out to mean that we were building a template for how terrorism would be handled. But nobody thought about it that way at the time. We didn’t see ourselves as pioneers. We were prosecutors. Like most things in litigation, you thought about issues as they came up.

And I would point out, that the cases that came after my case against the Blind Sheikh’s cell — particularly the embassy bombings in East Africa, the Khobar Towers attack in Saudi Arabia, and the bombing of the USS Cole in Yemen — raised issues of evidence collection and due process that in many ways dwarfed the challenges we were dealing with. As tough as the Trade Center cases were, at least we were investigating in our own country, under the authority of our own law. We were not forced to try making our due process principles work in very different environments — countries that had very different conceptions of due process.

But the main thing to stress is that we were not trying to do policy, we were trying to do prosecution. There was not a lot of time spent on questions about whether prosecution was the right approach.

In terms of policy, perhaps the most important aspect of the World Trade Center prosecutions was their illustration that our criminal law was unprepared for international terrorism. We simply did not have statutes and penalties that fit what terrorists do.

For example, if a bombing were successfully carried out and people were killed, we had a bomb statute that fit. It provided appropriately severe sentences up to life imprisonment (there was still a federal moratorium on the death penalty at the time). But if the terrorists had unsuccessfully plotted a bombing, even if their aim was to kill thousands of people, we did not have a terrorism or bombing conspiracy statute. You’d have to charge the case under the catch-all conspiracy statute in the federal penal code, which prescribed a penalty of zero-to-five years.

Since the goal in counterterrorism should always be to prevent the attack from happening, not content ourselves with prosecution after Americans have been killed, it was as if our agents were being penalized for success in saving lives.

After the 9/11 attacks, I was involved in the debates over the Patriot Act, and I worked on a bipartisan group of former government officials who helped Congress arrive at a consensus on reauthorizing the most contentious provisions. That experience taught me that the significance of the Patriot Act was vastly overrated. Essentially, all the Patriot Act did — or tried to do — was extend to national security agents the same investigative tools that criminal investigators had been using for decades.

To the contrary, the most consequential legislation in this area is the overhaul of counterterrorism law enacted in 1996. That statute — the Antiterrorism and Effective Death Penalty Act — fixed the glaring problems that our prosecution of the Blind Sheikh revealed. The legislation is the direct result of lessons learned through prosecutions in the Second Circuit.

It meant, for example, that in the future, prosecutors would not have to rely, as we did, on the Civil War-era seditious conspiracy statute (which essentially makes it a crime to wage war against the United States or use force against the government). Now, we finally had crimes that were perfect fit for the way terrorist organizations actually operate. Just as important, we also had crimes like material-support-to-terrorism that were designed to starve terrorist cells of assets and personnel — the idea being to interrupt these cells before their plots could gain momentum.

In other words, after 1996, you could have a spirited philosophical debate — and God knows we have had one — over whether international terrorism should be approached as a criminal justice problem or a national security challenge. But you could never again credibly complain that prosecutors did not have adequate tools to successfully charge and try any terrorists we actually managed to bring into federal court.

Let me make a few brief points about the attempted shift from judicial proceedings to military justice, which was fitfully attempted after 9/11.

To begin with, much of the debate has been oversimplified to the point of caricature. No credible commentator has ever argued that terrorism cases should be moved entirely out of the civilian courts. The narrow question has always involved whether enemy combatants — primarily but not exclusively, those who are non-U.S. citizens captured overseas — should be handled as criminal defendants or war prisoners.

That question mainly centers on the protection of intelligence during wartime, and whether we need to reveal too much of it to the enemy under due process protocols.

The vast majority of terrorism cases involving people arrested in the United States do not raise those questions. People apprehended in the United States should presumptively be tried in federal court as long as the courts are open and functioning. And if those people are merely inspired by organizations like al-Qaeda — which is part of the enemy as Congress has defined it in the Authorization for the Use of Military Force — their prosecution in civilian federal court presents no intelligence-disclosure problem. That problem only arises with terrorists who may have an operational connection to enemy terrorist organizations.

In a counterterrorism paradigm in which prevention rather than prosecution is our priority, you are going to have a lot of material-support cases. We certainly have had them in the Second Circuit and throughout the country. They have been a staple of post-9/11 enforcement, and they have always belonged in the civilian courts.

Secondly, much of the debate on this topic has focused on the wrong metrics. Advocates for civilian prosecution always point out that the Justice Department is essentially “batting a thousand” — virtually every terrorist indicted has been convicted. That even includes Ahmed Ghailani, whom DOJ puts in the win-column even though he was acquitted on 284 out of 285 counts.

I don’t mean to be catty by raising that statistic. Ghailani, after all, is serving a life sentence on the one terrorism count on which he was found guilty — and rightly so. My point is that no critic of civilian prosecutions doubts that we can try and convict terrorists under civilian due process rules in a manner that holds up under appellate scrutiny. The record of prosecutions in the Second Circuit over the last 25 years makes that obvious point incontestable.

The policy questions have always centered on the other concerns: whether we are adequately protecting intelligence while the war is ongoing; and whether we are inadvertently creating perverse incentives for terrorists to attack the United States. There is no doubt that we can successfully conduct terrorism cases.

Next, one of the major failings in the post-9/11 attempt to transition to military proceedings for enemy combatants was its seeming arbitrariness. A terrorist like Zaccharias Moussaoui, who could’ve been the poster child for military commissions, was put into the civilian system. Yet a terrorist like José Padilla –an American citizen apprehended coming off the plane in Chicago, in the midst of a bombing plot but without having taken any concrete steps here to accomplish it — was placed in the military system for a number of years.

The complaint that we were trying to formulate standards on-the-fly, and not doing a particularly coherent job of it, is well-taken.

Finally, those of us who were supportive of military commissions on the theory that the system would prove itself worthy have to admit that we’ve been proved wrong.

Many of the problems the commission system confronted were not problems of its own making. But that said, there have been major problems with the few trials that actually have taken place. In fact, the first one featured an incorrect legal instruction about what a war crime is — and since you can’t have a military commission trial unless you’re dealing with a war crime, that is rather a fundamental error.

My main complaint, though, involves the sentences that have been imposed. Often, they’ve been appallingly light given the gravity of the offenses. No matter how one feels about the propriety of bringing enemy combatants into civilian court, the fact is that terrorists who get convicted in civilian court have been slammed with appropriately severe sentences.

And while terrorism cases are complex and often take a long time to complete, federal judges — particularly here in the Second Circuit — have consistently brought them to conclusion with great skill … so much so that the Court of Appeals has taken pains to extend unusual but greatly merited praise for the care with which these trials have been conducted.

I’ve already taken too much time, so let me close with a parting thought that I hope we will be able to flesh out as the evening goes on. Since about 2004, I have been arguing for a hybrid system which would take the best elements of civilian and military due process and tailor them to the challenge of modern international terrorism. (A paper I wrote on the subject over a decade ago is included in the written materials for this panel.)

We have been dealing since that February day in 1993 with a threat that does not fit comfortably in the category of either war or crime. Unfortunately, the debate on this subject — as on many others — has been infused with partisan fighting that has been divisive to the point of paralysis. If we have to choose, I’m comfortable saying that what confronts us is more war than crime. But why should we have to choose? Our energy would be far better spent developing a new approach to a challenge that does not fit either of the old paradigms.

Thank you and, again, it’s a real pleasure to be here.