January 01, 2017

The Unique Challenges of Defending a Terrorism Prosecution

The substantive and procedural difficulties of defending a case in which you may not even be allowed to see all the evidence.

Joshua L. Dratel

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Defending a terrorism prosecution presents a number of challenges, some of which are unique to cases involving national security issues, and some of which mirror—but in amplified form—those arising in conventional criminal cases. Because terrorism cases often are high-profile, the difficulties attendant to intense media coverage must be addressed as well.

This article discusses those elements that distinguish terrorism prosecutions. Some are substantive; others are procedural. Some are statutory or regulatory, while others are constitutional. Some implicate defense counsel’s relationship with the prosecution, while others affect counsel’s relationship with the client. Together, all of these distinctions constitute a daunting matrix that often intimidates the uninitiated, stymies even the experienced, and creates a playing field that is tilted so demonstrably in favor of the prosecution that it feels perpendicular.

Also, while most of the more fundamental constitutional issues affecting the statutory framework have yet to be addressed, much less decided, by the Supreme Court, the lower courts have been nearly uniform in deferring to the government on an entire roster of issues that reinforce secrecy, ex parte communications, evidentiary restrictions, and onerous conditions of pretrial confinement. In that context, this article also provides some guidance for practitioners assuming responsibility for such cases, as well as some prescriptions for making the process fairer and more transparent, and ultimately more likely to generate more accurate and just results.

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