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Criminal Justice Magazine
Summer 2002
Volume 17 Issue 2

Prosecuting the War on Terrorism:
The government’s position on attorney-client monitoring, detainees, and military tribunals

By John P. Elwood

Today, the nation faces an unprecedented threat: For the first time in history, the civilian populace confronts the very real and imminent danger of death by a foreign enemy. The magnitude of the threat was made clear on September 11, 2001, when Osama bin Laden and the al-Qaeda organization killed more than 3,000 innocent people in New York, Washington, and Pennsylvania. But for the bravery of the passengers on Flight 93, even more would have died.

Clearly, September 11 was not an isolated event, but just the latest in a series of attacks on Americans that include the 1993 attempt on the World Trade Center, the 1998 bombing of the U.S. embassy in East Africa, and the 2000 attack on the U.S.S. Cole in Yemen. In February 1998, bin Laden ordered his followers "to kill Americans and plunder their money whenever and wherever they find it." Immediately after the September 11 attacks, bin Laden declared that "[t]he battle has been moved inside America, and we shall continue until we win this battle, or die in the cause and meet our maker." As these events indicate, al-Qaeda’s members are sophisticated, meticulous, patient, and quite willing to die in suicide attacks in order to kill Americans.

In response to this threat, President George W. Bush and Attorney General John Ashcroft have directed the U.S. Department of Justice (DOJ) to make the prevention of future terrorist attacks its overriding priority. The department has answered this directive by launching the largest criminal law enforcement effort in U.S. history. Since September 11th, hundreds of federal prosecutors and thousands of federal, state, and local law enforcement personnel have worked tirelessly toward this goal. Confronted with a murderous and implacable enemy, many predicted that the government would respond with a drastic curtailment of civil liberties. Indeed, some critics claim that is precisely what has happened. But they are wrong. In the hours after the terrorist attacks, Attorney General Ashcroft challenged all of us in the Justice Department to "think outside the box" in fighting terrorism, but cautioned us: "Don’t think outside the Constitution." We took that instruction to heart. The department is working aggressively and systematically to prevent terrorist attacks through national and international investigations of unprecedented scope, but it is doing so carefully within established constitutional and statutory limits.

The administration’s antiterrorism efforts are so wide-ranging that it would not be possible to discuss comprehensively the legal and policy implications of all aspects of them in an article of this length. Instead, this article will focus on three policies that have been the subject of particular attention from the bar: rules authorizing the monitoring of captured terrorists’ attorney-client conversations; detentions stemming from the September 11 investigation; and the use of military commissions to try persons charged with terrorism.

Attorney-client monitoring

Perhaps no other aspect of the DOJ’s antiterrorism efforts has been the subject of greater attention from the bar than the promulgation of regulations regarding attorney-client monitoring. In October 2001, the department amended existing 1996 Bureau of Prisons regulations that permit administrators to monitor the communications of particularly dangerous inmates under certain circumstances. Under the 1996 regulations, administrators may monitor the communications of inmates who are subject to special administrative measures based on a determination that unrestricted communication could result in death or serious bodily harm to others. The October 2001 amendment extended that regulation to permit the monitoring of attorney-client communications for this very small group of inmates only if the attorney general makes an additional finding that reasonable suspicion exists that a particular detainee may use communications with attorneys to further or facilitate acts of terrorism.

This is not a step the DOJ has undertaken lightly. Rather, it is a reasonable response to the very real possibility that detained terrorists will use visitors—witting or unwitting—to convey information to coconspirators outside prison. An al-Qaeda manual entitled Military Studies in the Jihad Against the Tyrants, which was recovered during the search of a group member’s home, gives insight into al-Qaeda’s methods of operation. The manual offers lessons on how to avoid detection in western society, how to communicate using secret messages, how to kill a person with or without weapons, and, most significantly, devotes a chapter to how to operate in prison after being captured. It instructs operatives:

Take advantage of visits to communicate with brothers outside prison and exchange information that may be helpful to them in their work outside prison. The importance of mastering the art of hiding messages is self-evident here.

It would be foolish to ignore such a clear warning of our enemies’ plans.

The amendment to the regulations is narrowly tailored to address the danger of catastrophic harm by seeking to deter certain high-risk prisoners from using their attorneys as unsuspecting couriers. So narrowly tailored is the amendment that, at the time this article was written, only a handful of the approximately 158,000 inmates in the federal system qualify for potential application of the rule. In addition, the regulation establishes numerous safeguards to protect communications that are covered by the attorney-client privilege.

First, unless officials have obtained a prior court order permitting surreptitious monitoring, the government must notify the prisoner and his or her attorney of monitoring. Second, no privileged information will be retained by those monitoring the conversations; the only information retained will be unprivileged information that refers to threats. Third, the regulation establishes a "firewall" mandating no connection between the monitoring team and any ongoing prosecution involving the prisoner. Fourth, absent an imminent emergency, the government will have to seek court approval before any information from monitored conversations is used for any purpose. And fifth, no information that is protected by the attorney-client privilege may be used for prosecution. Judicial review is built into the regulation in at least two ways: first, by requiring judicial approval before information obtained from monitoring is used, and, second, notice to the attorney and prisoner allows them to go to court to challenge monitoring before it begins.

American Bar Association President Robert Hirshon and a number of individual attorneys have criticized the rule citing a number of concerns: that attorney-client monitoring does not advance law enforcement or national security; that absent a prior court order such interceptions violate the Fourth Amendment; that the interceptions violate the Sixth Amendment right to counsel; and that it infringes on the attorney-client privilege and impairs the right to counsel. We believe these criticisms are not well founded. To begin with, the claim that the amendment does not advance national security, which is premised on the argument that the monitoring amendment is less likely to uncover investigative leads than a clandestine court-approved wiretap, both misapprehends the primary purpose of the regulation and fails to consider the amendment’s own language. The principal purpose of the amendment is not to develop leads on attacks that have already occurred, but to prevent attacks from happening in the first place. The Federal Register notice plainly states that the purpose of the amendment is deterrence rather than investigation. Moreover, if the DOJ concludes that it is preferable in an individual case to covertly monitor conversations in order to obtain investigative leads, the regulation expressly contemplates the monitoring of attorney-client communications without notice upon the issuance of an ex parte court order. (28 C.F.R. § 501.3(d)(2).)

Some have argued that intercepting such conversations without a prior court order based on probable cause violates the Fourth Amendment. That argument overlooks the fundamental principle that prisoners lack a reasonable expectation of privacy in their cells and, thus, "the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell." ( Hudson v. Palmer, 468 U.S. 517, 526 (1984); id. at 537–38 (O’Connor, J., concurring); see also Soldal v. Cook County, Illinois, 506 U.S. 56, 65 (1992).)

Probable cause is not required to monitor conversations, as it would be if the monitoring occurred outside prison. Even if the monitoring of detainees’ attorney-client conversations were considered a search within the meaning of the Fourth Amendment, the Supreme Court has made clear that searches of individuals lawfully held in custody are reasonable when they serve the fundamental interest of institutional security. ( See Bell v. Wolfish, 441 U.S. 520, 545–48, 556–57 (1979).) That is true both of pretrial detainees as well as persons convicted of crimes. The government’s interest in preventing terrorist attacks when it has reason to believe that an individual in custody may use communications with an attorney to facilitate such attacks is surely as compelling as the interest in institutional security. ( United States v. Montgomery, 675 F. Supp. 164, 168 (S.D.N.Y. 1987).) In addition, courts have rejected the proposition that when law enforcement is lawfully monitoring conversations there must be some additional showing of probable cause to intercept attorney-client conversations. ( United States v. Gotti, 771 F. Supp. 535, 543–44 (E.D.N.Y. 1991).)

The Sixth Amendment argument fares no better. Even when, as here, the government’s monitoring of attorney-client conversations is deliberate, the basic framework of analysis established in Weatherford v. Bursey, 429 U.S. 545 (1977), makes clear that the interception would be lawful. In Weatherford, the Court held that the constitutionality of monitoring attorney-client conversation turns on a number of factors: whether the government had a legitimate law enforcement purpose for the monitoring; the protections afforded to privileged communications; and the extent to which, if at all, the monitoring results in information being communicated to prosecutors and used at trial against the person. A number of courts of appeals have discussed deliberate monitoring, and the majority have concluded that, so long as the government possesses a legitimate law enforcement purpose for the intrusion, even deliberate intrusion does not violate the Sixth Amendment absent some showing of prejudice to the defendant. ( See, e.g., Shillinger v. Haworth, 70 F.3d 1132, 1142 (10th Cir. 1995); United States v. Kelley, 790 F.2d 130, 137 n.5 (D.C. Cir. 1986) (collecting authorities); see also United States v. Noriega, 764 F. Supp. 1480, 1489 (S.D. Fla. 1991).)

The Department of Justice recognizes concerns that monitoring may chill attorney-client communications and undermine the lawyer’s representation of his or her client. However, in the rare cases in which monitoring occurs, it should not chill legitimate communication about the client’s case. Given the protections that are in place, detainees should understand that they are free to discuss legitimately privileged matters with their counsel without fear of disclosure. The only communications the regulation should inhibit are those that may further or facilitate acts of terrorism because the monitoring team is walled off from any prosecutors or investigators working on the case; is prohibited from retaining any legitimately privileged communications; and, absent imminent danger, must go to court before making any use of information obtained through monitoring.

Detainees

Another subject of debate is that of individuals detained as a result of the ongoing terrorism investigation. The controversy stems, in no small part, from descriptions in popular accounts that erroneously suggest far greater numbers of detainees are being held for far lengthier periods than is actually the case. Popular accounts also characterize the detentions as "secret," despite numerous briefings by DOJ personnel, the availability of detainees for interview, and extensive press coverage. And they often suggest there is no substantial basis for the detention. ( See, e.g., Wayne Perry, Hundreds of Sept. 11 detainees still in N.J. jails, Associated Press, Mar. 9, 2002 (speaking of "little or no evidence linking them to a serious crime").) In one typical passage, a major newspaper recently spoke of "the secrecy surrounding the more than 1,200 people who have been jailed the last six months." (Steve Fainaur and Amy Goldstein, U.S. Is Quickly Repatriating Pakistanis Held After Sept. 11, Wash. Post, Mar. 8, 2002 at A1.) Press accounts of "mass detentions" and a "terrorism dragnet" greatly overstate the actual situation. Although the government’s effort to disrupt and prevent terrorist attacks has been aggressive—as befits the grave nature of the threat—it has been measured and completely lawful.

First, every detention that is part of this investigation has been, and continues to be, fully consistent with established constitutional and statutory authority. Contrary to suggestions that there is no basis for detention, every person detained has been charged with a violation of either criminal law or immigration law, or is being lawfully detained on a material witness warrant. These people are not being detained merely on the say-so of the government. In every criminal case and with respect to material witnesses, the person has been ordered detained by a neutral magistrate. Every immigration detainee goes before an immigration judge and has the option of appealing any detention order to the Board of Immigration Appeals with access to a federal court to review the legality of detention. These detainees are not being held "indefinitely," as some have claimed, but are being held consistent with the purpose of the detention. In criminal cases, they are held pending trial or sentencing (or, after conviction, to serve a sentence). In immigration cases, they are lawfully held pending deportation or removal. And material witnesses are held until they satisfy the terms of their warrant, typically by testifying before a grand jury.

Second, the actual number of detainees is far lower than is routinely reported. The quoted figure of 1,200 detainees is based on reports of the number of people the government has detained for any period of time in connection with questioning. In other words, it includes a large number of people who were briefly questioned and released and were never taken into custody. When this article went to press, the government was detaining about 77 people pretrial or presentencing on criminal charges, and holding approximately 98 persons in INS custody on immigration charges. To keep those numbers in perspective, there are, at any given time, more than 20,000 people being detained in this country on immigration charges alone. The supposed terrorism "dragnet" accounts for less than one-half of 1 percent of current immigration detainees.

In accordance with the Sixth Amendment, which requires that proceedings against individuals formally charged with criminal offenses be public, the identity of every person who has been detained on a criminal charge is a matter of public record. The government has not publicly identified immigration detainees to avoid giving al-Qaeda information about the course of our investigation and to protect the detainees’ privacy. As courts have noted time and again, publicly identifying persons in a way that would suggest their involvement in illicit or unpopular activity has important privacy implications. One group, even while complaining that the "government has still refused to provide either the names or the places of detention of those held for immigration violations," Amnesty International’s Concerns Regarding Post-September 11 Detentions in the USA, Amnesty Int’l Rep. at 10 (March 2002), itself declines to "includ[e] the names of many of the detainees" because of "fear that their or their families’ safety could be jeopardized through public hostility to anyone cited in connection with the September 11 attacks." ( Id. at 5.) Senator Orrin Hatch stated during a December 2001 hearing that it is "ironic that the same civil liberties groups that adamantly oppose the publication of the names of sexual predators now wax indignant when the Department of Justice refuses to provide [newspapers] . . . a list of those detained in connection with this terrorism investigation."

Material witnesses have not been publicly named because of grand jury secrecy and in some cases sealing orders. By not releasing the names, the government preserves privacy for those who want it. But while the government has not publicly identified immigration detainees and material witnesses, they are free to identify themselves. In fact, many have done so. Similarly, although some immigration proceedings have been closed to the public, they are hardly "secret." There is nothing preventing detainees or their attorneys from speaking to the press and describing the proceedings—and many have.

Third, each detainee has a right to counsel. Both criminal defendants and material witnesses are provided lawyers at government expense if they cannot afford one. Although federal law does not provide for appointed counsel in immigration proceedings, INS policy is to provide each person with information about available pro bono representation. Each detainee, whether held on criminal or immigration charges or as a material witness, has the right to make phone calls to family and attorneys. None is being held incommunicado. In addition, contrary to reported claims that immigration detainees are not being told the charges against them, each alien is given notice of the charges in writing when he or she is served with the charging document, usually within 48 hours of arrest. At the master calendar hearing, the immigration judge (with a language interpreter present) also goes through the removal charge and notifies the alien of his or her rights.

Consistent with its responsibility of preventing further terrorist attacks, the DOJ has acted aggressively to investigate terrorism and disrupt the activities of suspected terrorists. But it has also done so in a manner wholly consistent with constitutional guarantees.

Military tribunals

On November 13, 2001, President Bush signed an executive order authorizing the use of military commissions to try foreign terrorists for war crimes. Although a few commentators labeled the commissions "kangaroo courts," most agreed that the order was a legitimate and prudent step to prepare to bring to justice those who had planned the September 11 attacks and who are planning further violence against Americans. Military commissions have been used to try violations of the law of armed conflict since the earliest days of the Republic, and the Supreme Court has repeatedly upheld their use. ( See, e.g., Ex parte Quirin, 317 U.S. 1 (1942); Application of Yamashita, 327 U.S. 1 (1946).)

The use of military commissions is not only legally proper; there are sound policy reasons why such commissions might be employed in individual cases. First, proceedings before military commissions may be needed to safeguard classified information at the trial of al-Qaeda members. Although the government has successfully prosecuted past terrorist acts in civilian court without compromising classified national security information, given the scope and scale of the terrorist threats that we now face, the challenges in future trials are likely to be of an entirely new order of magnitude. We may face situations where the bulk of the evidence for a prosecution is classified material or material gathered from foreign intelligence sources that cannot be revealed. Second, military commissions are equipped to deal with the significant security concerns that can arise from a trial of terrorists. We are all aware that trying terrorists in our cities could place judges and juries—and indeed, the cities themselves—at risk. The judge who tried the 1993 World Trade Center bombing trial continues to be under round-the-clock security, years after its conclusion; members of the military are better prepared to face the safety risk of sitting on a panel to decide the fate of an accused terrorist than a civilian judge and jury. Finally, it bears repeating that the attacks of September 11 were launched by a foreign power and killed thousands of innocent people. Although the attacks undoubtedly violated domestic law, they also represented something different in kind from mere domestic crimes. The trials of terrorists will represent more than an effort to discipline an errant member of society for violating domestic law—it will also be an act of self-defense against an external threat to our collective safety. It is entirely appropriate and reasonable to try war crimes of this sort as they often have been tried—before military commissions.

Some have argued that the president lacks the authority to act without the assent of Congress. But the president has considerable independent authority under the Constitution to defend the country when it has been attacked from abroad, see the Prize Cases, 67 U.S. 635, 668, 670 (1862), and "[a]n important incident of the conduct of war is the adoption of measures by the military commander, not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war." ( Application of Yamashita, 327 U.S. at 11.) Even assuming that the president lacks authority under his war powers to act independently, this argument overlooks the authority Congress has already provided. Article 21 of the Uniform Code of Military Justice, 10 U.S.C. § 821, recognizes that the president has authority to use military commissions to try offenses under the law of war. It states that "[t]he provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions . . . of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions." The Supreme Court concluded that identical language in the predecessor provision to section 821—Article 15 of the Articles of War—" authorized trial of offenses against the laws of war before such commissions." ( Ex parte Quirin, 317 U.S. at 29.) Given the text and history of section 821, it must be read as preserving the broad traditional jurisdiction exercised by military commissions before they were expressly mentioned in statutory law.

Others have complained that the president’s initial order authorizing commissions lacked sufficient procedural protections for the accused. Although the order itself guaranteed certain rights—the right to counsel and a full and fair trial; the right not to be discriminated against because of race, gender or status; the right to freely exercise religion; and the right to food, shelter, and medical treatment—it did not include others. These criticisms were premature. As Assistant Attorney General Michael Chertoff indicated in his written testimony before the Senate Judiciary Committee shortly after the order’s release, "[t]he President’s order represents just the first step in invoking this traditional power to prosecute those who violate the well-settled law of war." The order anticipated that the secretary of defense, who was charged with promulgating the rules governing military tribunals, would expand on the rights already contained in the order itself. In other instances, criticisms were simply incorrect. For example, some have claimed that the order’s language suspends habeas corpus. However, very shortly after the order’s release, the administration publicly stated that the order preserved habeas corpus, noting that it incorporated the operative language of President Franklin D. Roosevelt’s order authorizing trial by military commission of Nazi saboteurs during World War II, which the Supreme Court concluded in Ex Parte Quirin preserved habeas. Others claimed that the order (which by its terms was limited to noncitizens) could be used to prosecute any of the millions of aliens living in the United States for minor violations of domestic law. However, the order itself stated that it would be used only against members of al-Qaeda, international terrorists targeting the United States, and persons who aided and abetted them. The administration promptly stated that, consistent with Supreme Court precedents upholding their use, commissions would only be used to try individuals suspected of war crimes, not mere violations of domestic law. ( See, e.g., Testimony of Michael Chertoff before the Senate Judiciary Committee, November 28, 2001.)

The public release on March 21, 2002, of rules governing the conduct of military commissions has answered many questions. The rules make explicit that all persons tried by military commissions would be presumed innocent until proven guilty beyond a reasonable doubt; have a right to be provided military counsel and to retain private counsel; have a right to timely notice of the charges against them, to cross-examine witnesses against them, and to present evidence on their own behalf; and have a right to pretrial discovery of the evidence to be introduced at trial. The rules also require unanimous verdicts for the death penalty to be imposed, and provide for appeal to a three-member review panel (including civilians serving as temporary military officers). The proceedings are presumptively open, and the White House has already indicated that trials will be as open as possible consistent with the needs of national security.

Nevertheless, there continue to be a number of criticisms of military commissions. One common complaint is that the United States has in the past criticized the use of military commissions by other countries and, therefore, shouldn’t employ them ourselves. However, it does a disservice to the U.S. military to assume that simply because we have criticized military commissions in other nations, any commission operated by the U.S. military will necessarily suffer from the same flaws we have pointed to elsewhere. When we have criticized the use of military commissions in other countries, it has typically been because the commissions in question employ procedures that are deemed unacceptable. In one oft-cited case in South America, the military tribunal (among other things) did not permit defense counsel to question prosecution witnesses either before or during the trial, and, in some instances, trials were begun without even notifying defense counsel. Such procedures plainly would not be used in American military commissions. Some of the principal criticisms of the rules for military tribunals include that (a) by permitting the introduction of any evidence that "would have probative value to a reasonable person" (Military Commission Order No. 1, § (6)(D)(1)), the rules would permit the use of hearsay evidence and other evidence that would not be admitted in civilian trials; (b) where the death penalty is not imposed, they permit conviction by a two-thirds vote; and, (c) they lack independent review by civilian courts.

Critics suggest that the rules subject persons tried in military commissions to "an inferior brand of justice," and will lack the support of the international community. However, these procedures are based on long precedent and sound policy.

To begin with, the evidentiary rules established by the executive order are consistent with historical practice in this country and internationally. The same standard was imposed by President Roosevelt in the Quirin case and was followed in hundreds of military commissions after World War II in order to simplify evidentiary rulings, to eliminate elaborate and technical rules of evidence, and to ensure that all evidence with probative value to the issue of guilt or innocence could be considered. This makes great practical sense given that during wartime and on the battlefield the collection and maintenance of evidence cannot be done under the same laboratory-like conditions as those at a domestic crime scene. As White House Counsel Alberto Gonzales noted, "circumstances in a war zone often make it impossible to meet the authentication requirements for documents in a civilian court, yet documents from al-Qaeda safe houses in Kabul might be essential to accurately determine the guilt of al-Qaeda cell members hiding in the West." There is no reason the international community should frown on this standard; after all, the same standard is also applied by UN-sponsored war crimes tribunals such as the International Criminal Tribunal for the Former Yugoslavia. ( See Rule of Procedure and Evidence 89(C), International Criminal Tribunal for the Former Yugoslavia, IT/32/REV.21 (2001) ("A Chamber may admit any relevant evidence which it deems to have probative value.").)

The two-thirds vote requirement likewise is consistent with the historical practice of the United States with regard to military commissions. President Roosevelt applied a two-thirds vote requirement for the military commission he convened in 1942, and that was the standard requirement for the hundreds of military commissions convened after the war to try war criminals. Convictions by such commissions were upheld by the Supreme Court in Ex parte Quirin, 317 U.S. 1 (1942), and again in Application of Yamashita, 327 U.S. 1 (1946). The two-thirds vote requirement in U.S. military commissions, moreover, provides greater protection to the accused than the simple majority requirement applicable in the international criminal tribunals established to try war crimes arising out of Rwanda and the former Yugoslavia and that will be applicable under the Rome Statute for the International Criminal Court.

Some criticize the system because of a lack of "independent review by civilian courts." However, the courts martial that try our own troops and military appellate courts that review their cases have always been a part of the military. There is a long and well-respected tradition of command noninterference in military justice issues that ensures independent decision making by these panels. The suggestion that military commissions are rubber stamps for the prosecution is not borne out by historical experience. The great care that military commissions historically have taken in deciding guilt is reflected by the significant number of acquittals during the military commissions used to try war criminals at the end of World War II. The United States tried more than 3,000 individuals in military commissions after World War II. The conviction rate in those commissions was approximately 85 percent, which is lower than the conviction rate in most civilian federal courts. During fiscal year 2001, the conviction rate including guilty pleas and dispositions at trial for civilians tried on criminal charges in Article III courts was 91 percent; in the Southern District of New York it was 97.2 percent.

Conclusion

Without understanding the challenge we face, one cannot understand the need for the measures law enforcement has employed. In the aftermath of September 11, we have an obligation to try to prevent future terrorist attacks. Our fundamental duty to protect America and its people requires no less. Yet it is equally important to emphasize that the investigative techniques the government is currently employing are all legal under the Constitution and applicable federal law as it existed both before and after September 11th.

During a speech to the National League of Cities, ABA President Hirshon asked whether we as a nation can "maintain the freedoms that are rooted in the nation’s very soul while ensuring the safety of our citizens." It is a question of utmost importance to people in a free society, and one of particular significance to lawyers, who occupy positions of special importance in safeguarding liberty. The Department of Justice agrees with President Hirshon that the answer to that question is an unequivocal—and emphatic—"yes."

John P. Elwood was, until April 2002, counselor to Assistant Attorney General Michael Chertoff at the Criminal Division of the U.S. Department of Justice. He helped draft the criminal provisions of the Bush administration’s antiterrorism proposals that became the USA PATRIOT Act and worked with Congress to develop the final legislative package enacted into law in October 2001. He currently is assistant to the U.S. Solicitor General.


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