The threat of "enemy combatant" statusProsecutors delegitimize this status by using it to extract plea bargains
Today's Washington Post has a really good article
on the case of the "Lackawanna Six" -- six men that pled guilty to providing support to Al Qaeda and attending terror raining camps in Afghanistan. As someone who teaches and writes on issues of law and terrorism, my eyes got wide when I read the piece of the story describing the tactics used by the government to get the plea bargain:
Why would six of their young men so readily agree to plead guilty to terror charges, accepting long prison terms far from home?This is not an isolated incident.
"These knuckleheads betrayed our trust, and we're disgusted with their attendance at the camps in Afghanistan," Mohammed Albanna, 52, a leader in the Yemeni community here, said of the six men who have admitted to attending an al Qaeda training camp two years ago. "But the punishment doesn't fit the crime, or the government's rhetoric. It's ridiculous."
But defense attorneys say the answer is straightforward: The federal government implicitly threatened to toss the defendants into a secret military prison without trial, where they could languish indefinitely without access to courts or lawyers.
That prospect terrified the men. They accepted prison terms of 61/2 to 9 years.
"We had to worry about the defendants being whisked out of the courtroom and declared enemy combatants if the case started going well for us," said attorney Patrick J. Brown, who defended one of the accused. "So we just ran up the white flag and folded. Most of us wish we'd never been associated with this case."
On June 22, I wrote
about another instance of the government using this tactic to extract a guilty plea from a defendant in federal court. The New York Times reported
this in their story about alleged Al Qaeda operative Iyman Faris, who was accused of plotting to blow up the Brooklyn Bridge.
Prosecutors said Mr. Faris traveled in Afghanistan and Pakistan beginning in 2000, meeting with Osama bin Laden and working with one of his top lieutenants, Khalid Shaikh Mohammed, to help organize and finance jihad causes. After returning to the United States in late 2002, officials said, he began casing the Brooklyn Bridge and discussing via coded messages with Qaeda leaders ways of using blowtorches to sever the suspension cables. Analysis
The plotting continued through March, as Mr. Faris sent coded messages to Qaeda operatives in Pakistan. One such message said that "the weather is too hot." Officials said that meant that Mr. Faris feared that the plot was unlikely to succeed — apparently because of security and the bridge's structure — and should be postponed. He was arrested soon after, although officials would not discuss the circumstances of his capture.
: There are several implications for this kind of behavior for the government:
is that it really does extend the threat of "enemy combatant" status to a broader segment of the population than was previously thought. When the men at Guantanamo were labeled enemy combatants, we could rationalize it by saying "They were picked up in Afghanistan, on a battlefield, with some plausible connection to the war on terrorism." When men like Jose Padilla were so designated, we could arguably say he was an enemy guerilla seeking to wage war on the streets of America. But when we start to see men charged in federal court, treated as civilians by the system, and then threatened with this status, I think it casts doubt on the protections afforded to those in the criminal justice system.Second
, I think this delegitimizes the label of "enemy combatant" itself. That term has tremendous weight in court. The government is arguing in the Hamdi
cases that it should not even be questioned by the courts about this designation. Yet, the government casually uses this label as a threat in cases where the defendants are being charged in civilian court.Third
, the casual use of "enemy combatant" status will hurt the government as it tries to win the trust of the American population. A lot has been written about the proper balance between liberty and security since Sept. 11. It takes political capital to pass measures like the USA PATRIOT Act and Homeland Security Act, and it will take more political capital to pass future anti-terrorism laws. That political capital is built on a foundation of trust between the people and the government; that the people trust the government to abuse their liberty in the name of security. I think the average American will see this story and think the government is abusing its public trust, and going too far in its war on terrorism at the expense of civil liberties.Update
: An informed reader writes with a link to a story in the Wall Street Journal
(subscription required) from April 2003 reporting this same story about the Lackawanna Six. When something appears in the New York Times
, Washington Post
, and Wall Street Journal
(papers which lean to the left, center and right, respectively), you can pretty much take it as true. Scot Paltrow adds an interesting dimension to this story that I hadn't considered:
In the Lackawanna case, there were indications that the government's case wasn't as strong as officials in Washington had characterized it after the arrests. The government had called the arrests a major victory in the fight against terrorism. But Michael A. Battle, the U.S. attorney in Buffalo, confirmed the government has found no evidence the defendants were involved in any violent plot.
A former senior FBI official in Washington, who was involved in supervising the investigation for months before the arrests were made, said in an interview that secret surveillance revealed no sign that the men had any hostile intent. That contrasts with the portrayal of the defendants by top government officials, including President Bush in his State of the Union address, as a dangerous terrorist cell waiting to carry out an attack.
Guilty pleas also enable the government to sidestep a crucial, unsettled legal issue: Whether mere attendance at a training camp amounts to providing "material support and resources" to a terrorist organization, under terms of a 1996 law. While the issue hasn't been decided in court, the charges appear to conflict with specific guidance in the Justice Department's Manual for U.S. Attorneys, which says the charge requires evidence of continuing work on behalf of terrorists.
A similar issue came up in the John Walker Lindh case
, where U.S. District Judge T.S. Ellis III held
that the material support statute (18 U.S.C. 2339b
) did not unconstitutionally infringe on Lindh's rights. But Lindh did a lot more than merely attend a training camp -- he admitted
to carrying weapons and explosives as part of the Taliban. Jess Bravin reported
at the time of Lindh's plea bargain that this threat was made in his case as well, and that it was probably a factor in Lindh's decision to plead guilty in exchange for a 20-year sentence.
Lawyers in the case said informal talks about a plea bargain began six weeks ago, and that the defense initially proposed a 10-year sentence. President Bush approved a 20-year term Thursday. The two sides spent the weekend hammering out the particulars, and signed off on the terms around 1 a.m. Monday.Final Thoughts
Mr. McNulty [the U.S. Attorney] called the deal "an important victory for the American people," adding that it proved "the criminal justice system can be an effective tool in combating terrorism."
In recent months, the Bush administration hasn't been so sure. After coming up against such varying hurdles as Mr. Lindh's crackerjack defense team and the erratic courtroom behavior of Zacarias Moussaoui, who is representing himself at trial on charges of conspiring in the Sept. 11 hijackings, officials increasingly are seeking to bypass the justice system altogether.
Instead, officials have designated two U.S.-born men taken in antiterrorism operations as "enemy combatants," holding them in military jails without charge or access to lawyers.
And according to chief defense lawyer James Brosnahan, prosecutors suggested Mr. Lindh might face the same fate should he be acquitted of criminal charges, adding to the pressure for a plea deal.
: It's not clear how the courts will treat 18 U.S.C. 2339b when it comes before them. First, some defendant has to challenge the government and not
be carted off to a military brig as an enemy combatant. Second, the defendant will need to overcome all of the judicial deference issues
which have dominated the major terrorism cases to date. Third, the challenge will need to be made on the right facts -- someone who purely provided nominal material support to a terrorist organization, such as speech or advocacy on their behalf.
Had the Lackawanna Six not pled guilty, they might have been the first defendants to take this issue up through the courts. But the issue for these six men is now moot.