Sua Sponte: A Judge Comments

To label defendants “terrorists,” as government press releases and the media commonly do, is, to say the least, an overstatement, much more often than not. It is, however, this highly prejudicial and ill-fitting label that invariably attaches and sticks to the case throughout its existence. It is a label, moreover, that defense counsel can expect the government to highlight repeatedly in its approach to the case outside and inside the courtroom. But the press release, headlines, and breathless commentary that accompany the indictment and arrests are one thing; the risk that the judge potentially may be influenced, albeit only subconsciously, is another.

So, in addition to the unique and manifold other challenges Mr. Dratel accurately describes that confront defense counsel, there is one that he did not touch on: the effect on the judge of being at the center of a high-profile, attention-grabbing, and closely observed—but typically wrongly labeled—“terrorism” case. This is not a matter of the bias that we bring 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 from being engaged during a prolonged pretrial period and lengthy trial in a setting in which terms like “terrorist,” “terrorism,” “national security,” and “the Global War on Terrorism” can be recurrent motifs. Even where the jury rarely hears those terms, the judge will encounter them, or variants of them, often, whether in briefs, exhibits, and otherwise in standard pretrial proceedings or in ex parte hearings under the Classified Information Procedures Act. Indeed, there is a not-so-subtle underscoring that occurs where the judge and his or her staff undergo security clearance background checks.

In this context, defense counsel must be alert to and counteract—subtly and deferentially, of course—the potential effects on the judge of the “atmospherics” that can pervade all phases of the case.

Counsel must see to it that, no matter how vociferously and vigorously the government uses the “terrorist” label when speaking of the defendants, the proceedings remain true throughout to the Constitution and its guarantee of fair and impartial judgment. Before and during the trial or plea, and most certainly at sentencing, defense counsel should—even though the government may not and the media won’t—strive to make clear to the court that the labels “terrorist” and “terrorism” simply do not apply to his or her client. An unfulfilled and typically unattainable desire to help, or even become a member of a foreign terrorist organization, is not the same as actually committing acts of terrorism. Just as planning a bank robbery is not the same as putting a gun in a teller’s face, plotting (often with government-sponsored encouragement) to help a terrorist organization is not the same as providing money or munitions to the organization, laying a roadside bomb, or bringing down a building. While both wanting to do so and actually doing so are evil and reprehensible and require deterring, they are not the same. Denominating both as terrorism, and those who engage in both as terrorists, can distort the process of adjudication of those whose thoughts and plots never matured, or could have matured, into dangerous acts.

Most often, as one peels away the layers of rhetoric and deals with the peculiarities (which Mr. Dratel so capably describes) often pervading these cases, one sees that the defendants are ensnared in a gossamer web. Though they wove the first strands, its enlarging and expanding were the government’s handiwork.

Not unimportant work: Given the deadly effects of a plot that is put into action, we want our government to be alert—and, as importantly, to be seen as alert, vigilant, and vigorous—in its efforts to prevent those deadly consequences. And, to be sure, not every charge of conspiring or attempting to provide material support to overseas terrorists, or acting in furtherance of their objectives, is of the sort I am describing. A passenger attempting to detonate a shoe bomb in fact is a terrorist and deserves denunciation as such.

Indeed, the government should respond effectively to those who, in fact, are in the early stages of putting together and into action plots that, if they came to fruition, would be as dangerous or more dangerous than igniting an explosion in an airplane, driving a truckload of explosives into a Marine barracks, or flying airplanes into the Twin Towers. Investigating and successfully prosecuting plotters of that mindset long before they become truly dangerous is a worthy, indeed necessary, governmental function and endeavor.

It is also an undertaking that necessarily relies on infiltration and undercover work. All conspiracies are subterranean, doing their work out of public view. It has been a mark of the government’s successful use of its agents as, in effect, monitors and faux cohorts, that has produced the successful prosecutions reported in the Federal Judicial Center’s compendium. To the extent that those prosecutions, their high conviction rate, and their lengthy sentences have had a deterrent effect on others who might have been similarly inclined, that work and those convictions have well served our national interest.

But the label of “terrorist,” nonetheless, has no place in the chambers or the courtroom, or in what happens in either. Defense counsel must see to it that the judge’s perception of the job he or she must do is not clouded over by the atmospherics of the case. In making this suggestion, I do not underestimate at all the difficulty of the task, which is, at bottom, one of reminding the judge to be fair and impartial, no matter how often the government emphasizes its view of the defendants as terrorists. It’s not just the nomenclature: The evidence the government may present may create its own risks of influence. In a case that went to trial before me, the principal among five defendants had sought out and downloaded from the Internet a vast assemblage of jihadist videos. To show the defendant’s intent and dedication to his alleged plans to become trained to join the insurgency in Iraq, the government (with my concurrence) showed a sample of those videos. Some were even more gruesome and inhumane than those that judges and jurors see in a child pornography prosecution.

But no judge can let his or her human response to what the government displays diminish the judicial duty to be fair and impartial.

So what defense counsel can expect to encounter when called on to defend a “terrorist” in a “terrorism” case is not just what Mr. Dratel predicts and details. There is the need to peel those labels from the case so that the government’s use of those terms does not cloud the judge’s vision of what the case actually is about.

I certainly hope that no lawyer ever feels the need to attempt that unwelcome chore; but if it becomes necessary to do so—to ensure that the judge does not let the government’s labels affect his or her job and judgment—that is a task that, no matter how unwelcome, counsel must undertake.