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Preparatory Colloquium of the XVIII International Congress of Penal Law
Section III
Pula (Croatia), 6-9 November 2008
UNITED STATES OF AMERICA
*
Steven W. BECKER
**
In no country in the world are the enactment of special procedural measures and the concomitant loss of longstanding
civil rights more evident than in the United States. Unfortunately, since the September 11, 2001, attacks,
the United States government has used fear as a means to rapidly dismantle traditional procedural measures
established to protect the citizenry from governmental abuse and to gut ancient common law and constitutional
protections under the guise of fighting a “war” against terrorism. The present report is designed to outline
this disintegration, to highlight its most recognizable features, and, thereby, to hopefully contribute to future reform.
I. Reform of Legal Framework: Special Measures with Regard to Prevention, Investigation, and Prosecution.
1
Pursuant to the United States Constitution, the President has the power, “by and with the Advice and Consent of
the Senate, to make Treaties.”
2 Furthermore, “all Treaties made, or which shall be made, under the Authority of
the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”3 It is well established that a
self-executing treaty binds the States pursuant to the Constitution’s Supremacy Clause and that States must
recognize the force of such a treaty in the course of adjudicating the rights of litigants.4 Moreover, where a treaty
provides a particular remedy, there is no question of intruding on the prerogatives of the States, as courts must
apply the remedy as a requirement of federal law.5 In addition, the questions of whether a treaty is self-executing,
i.e., operates of itself, and whether it creates individual rights and remedies are analytically distinct.6
With respect to the International Covenant on Civil and Political Rights (ICCPR),
7 the United States Supreme
Court has declared that the ICCPR is not self-executing.8 In fact, when the U.S. Senate ratified the ICCPR, it
specifically declared that the provisions thereof were “not self-executing.”9 Congress has yet to enact the neces-
*
Important notice: this text is the last original version of the national report sent by the author. The Review has not assured
any editorial revision of it.
**
Assistant Appellate Defender, Office of the State Appellate Defender, First District, Chicago, Illinois, USA; Adjunct Professor,
DePaul University College of Law, Chicago, Illinois; Senior Fellow, International Human Rights Law Institute, DePaul
University College of Law; Co-Rédacteur en Chef, REVUE INTERNATIONALE DE DROIT PÉNAL (France).
1
This Report will follow the basic structure of the Questionnaire prepared by the General Rapporteur, Professor John A. E.
Vervaele.
2
U.S. CONST. art. II, § 2, cl. 2.
3
U.S. CONST. art. VI, cl. 2.
4
Sanchez-Llamas v. Oregon, __ U.S. __, 126 S. Ct. 2669, 2680 (2006).
5
Id.
6
Medellin v. Dretke, 544 U.S. 660, 687 (2005) (O’Connor, dissenting); Jogi v. Voges, 480 F.3d 822, 830 (7th Cir. 2007).
7
16 Dec. 1966, 999 U.N.T.S. 171.
8
Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004).
9
138 Cong. Rec. S4784.
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sary implementing legislation.
10 Thus, the individual rights enumerated in the ICCPR are not enforceable in federal
court.11
As to the Geneva Conventions,
12 federal courts “have consistently held that the Geneva Conventions . . . are not
self-executing and, thus, provide no basis for the enforcement of private rights in domestic courts.”13 Yet, in
Hamdan v. Rumsfeld
,14 a case involving the propriety of trying a Yemeni national before a special military commission,
the United States Supreme Court held that, at a minimum, Common Article III, which is included in all
four Geneva Conventions, was applicable and could be invoked by the petitioner to challenge the legality of his
trial by military commission.15 In response to Hamdan, however, the United States Congress passed the Military
Commissions Act of 2006 (MCA),16 which, in section 5(a), provides that “[n]o person may invoke the Geneva
Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United
States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United
States is a party as a source of rights in any court of the United States or its States or territories.”17
With regard to the American Convention on Human Rights,
18 the United States has only signed the Convention
but has never ratified it.19 The decisions of the Inter-American Court of Human Rights, which court was created
by the American Convention, are binding only on the States Parties to the American Convention.20
Numerous legislative reforms have been carried out in the United States under the guise of protecting national
security and ensuring public safety. The most well-known and wide-sweeping of these measures is the “Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001” (USA PATRIOT Act),
21 which was signed into law by President Bush on October 26, 2001.22 Unbeknownst
to most people, the proponents of the USA PATRIOT Act utilized the atmosphere of fear following the September
11th attacks to secure passage into law of many proposals that were previously rejected or had been found to be
unconstitutional by the courts.23 With respect to special procedural measures, one of the most significant
changes was a dramatic shift toward cooperation between law enforcement and intelligence agencies.24 Other
noteworthy provisions involved creating a new federal crime of “domestic terrorism,” allowing “sneak and peak”
10
Hain v. Gibson, 287 F.3d 1224, 1243 (10th Cir. 2002).
11
Sosa, 542 U.S. at 735.
12
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 Aug.
1949, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked
Members of the Armed Forces at Sea, 12 Aug. 1949, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners
of War, 12 Aug. 1949, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of
War, 12 Aug. 1949, 75 U.N.T.S. 287.
13
United States v. Fort, 921 F. Supp. 523, 526 (N.D. Ill. 1996). See Stutts v. De Dietrich Group, No. 03-CV-4058 (ILG), 2006
WL 1867060, at *7 (E.D.N.Y. 30 June 2006). But see JORDAN J. PAUST, INTERNATIONAL LAW AS LAW OF THE UNITED STATES 492
(2d ed. 2003) (contending that “as customary international law, the Geneva Conventions are directly part of the laws of the
United States”).
14
__ U.S. __, 126 S. Ct. 2749 (2006).
15
Id. at 2793-97.
16
Public Law No. 109-366, 120 Stat. 2600 (2006) [hereinafter MCA].
17
Id. § 5(a), 120 Stat. at 2631.
18
22 Nov. 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123.
19
See http://www.oas.org/juridico/english/Sigs/b-32.html.
20
American Convention on Human Rights, supra note 18, art. 68(1). See Fernando Felipe Basch, The Doctrine of the Inter-
American Court of Human Rights Regarding States’ Duty to Punish Human Rights Violations and Its Dangers, 23 AMERICAN
U
NIVERSITY INTERNATIONAL LAW REVIEW 195, 217 (2007).
21
Pub. L. No. 107-56, 115 Stat. 272 (2001) [hereinafter USA PATRIOT Act].
22
See Steven W. Becker, “Mirror, Mirror on the Wall . . .”: Assessing the Aftermath of September 11th, 37 VALPARAISO
U
NIVERSITY LAW REVIEW 563, 592 (2003).
23
Id.
24
Id. at 593-605.
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searches, monitoring computer and internet use, permitting roving wiretaps, compromising grand jury secrecy,
and curtailing immigrants’ rights.
25
Several other important legislative enactments were the Detainee Treatment Act of 2005 (DTA)
26 and the MCA in
2006.27 The DTA effectively eliminated use of the writ of habeas corpus filed by or on behalf of any alien detained
at Guantanamo Bay in future cases28 and granted limited appellate review to the United States Court of Appeals
for the District of Columbia Circuit – but only for determination of the validity of final decisions of the Combatant
Status Review Tribunal and of the question of whether the final decisions of the special military commission are
consistent with the standards and procedures specified in the relevant military commission order, and whether
such standards and procedures are consistent with U.S. law.29
The MCA, on the other hand, was specifically designed to overrule the United States Supreme Court’s decision
in
Hamdan,30 i.e., to retroactively strip the federal courts of jurisdiction to entertain any habeas corpus petitions
filed by aliens detained by the United States by amending the federal habeas corpus statute as follows: “No
court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed
by or on behalf of an alien detained by the United States who has been determined by the United States to have
been properly detained as an enemy combatant or is awaiting such determination.”31 In addition, the MCA legislatively
authorizes the use of military commissions and codifies the rules relating to such proceedings.32
These latter reforms, in particular, have dramatically altered the traditional approach to terrorism-related acts by
shifting the paradigm from a criminal model, under which such crimes have historically been prosecuted, to a
military model.
33 In fact, the MCA provides two separate tracks outside the ordinary criminal justice system for the
prosecution of those detained in the aftermath of September 11th,34 viz., “lawful enemy combatants” will be subject
to trial by courts-martial, while “unlawful enemy combatants” will be subject to trial by special military commission.
35
The United States Supreme Court has been very active in striking down certain of the aforementioned enactments,
especially with respect to executive and legislative efforts to restrict the access of the Guantanamo Bay
detainees to federal court. For example, in
Rasul v. Bush,36 the United States Supreme Court reversed the decision
of the appellate court and held that the federal habeas corpus statute extended to aliens detained at Guantanamo
Bay.37 The government had argued that the federal courts had no jurisdiction over the petitions because
the Guantanamo Bay Naval Base was located on property that was not part of the sovereign territory of the
United States, but rather was land the United States leases from Cuba.38 The United States Supreme Court,
however, rejected this claim, holding that the district court’s jurisdiction over the detainees’ custodians was sufficient
to provide subject-matter jurisdiction under the habeas corpus statute.39
25
Id. at 605-11.
26
Public Law No. 109-148, 119 Stat. 2680 (2005) [hereinafter DTA].
27
See MCA, supra note 16.
28
See Hamdan v. Rumsfeld, __ U.S. __, 126 S. Ct. 2749, 2763-69 (2006).
29
Id. at 2762-63.
30
See Boumediene v. Bush, Nos. 06-1195, 06-1196, 2008 WL 2369628 (U.S.), at *10-*11 (June 12, 2008).
31
MCA, supra note 16, § 7(a), 120 Stat. at 2635-36.
32
Id. § 3(a)(1), 120 Stat. at 2600-31. See George P. Fletcher, Hamdan Confronts the Military Commissions Act of 2006, 45
COLUMBIA JOURNAL OF TRANSNATIONAL LAW 427, 429 (2007) (“The MCA 2006 is the first direct and explicit legislative authorization
of the use of military tribunals.”).
33
See Becker, supra note 22, at 578-80 (discussing U.S. government’s attempt to “have its cake and eat it too” by using most
favorable elements from both models).
34
Fletcher, supra note 32, at 429.
35
MCA, supra note 16, § 3(a)(1), 120 Stat. at 2602-03 (adding 10 U.S.C. § 948c and § 948d(b)).
36
542 U.S. 466 (2004).
37
Id. at 483-84.
38
Id. at 471, 475.
39
Id. at 480-84.
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Following
Rasul’s order remanding the cases to the district court, Congress enacted the DTA, as detailed above.
In 2006, however, the United States Supreme Court in Hamdan ruled that the DTA did not strip the federal courts
of jurisdiction over habeas cases pending at the time of the DTA’s enactment.40 The Court further ruled that
certain military commission procedures, especially that barring the accused from being present during any part of
the proceeding that is closed, were violative of Common Article 3 of the Geneva Conventions.41 In response to
Hamdan
, the legislature enacted the MCA in an effort to overturn Hamdan.
In June 2008, in Boumediene v. Bush,42 the United States Supreme Court ruled that the Guantanamo Bay detainees
have a constitutional privilege of habeas corpus, which cannot be withdrawn except in conformance with
the U.S. Constitution’s Suspension Clause.43 Secondly, the Court held that the Combatant Status Review Tribunals
(CSRTs) set up by the Department of Defense to determine whether the detainees are “enemy combatants”
“fall short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review.”
44
Thirdly, the Court found that the DTA review procedures, which allow for only limited review of the
CSRTs’ determinations, were an inadequate substitute for habeas corpus because they did not provide an opportunity
for the detainee “to present relevant exculpatory evidence that was not made part of the record in the
earlier [CSRT] proceedings.”45 Accordingly, the Court found that section 7 of the MCA constituted an unconstitutional
suspension of the writ of habeas corpus.46 Finally, the Court concluded that, in light of the exceptional
length of detention involved (more than six years in some cases), the detainees would be permitted to seek the
writ without first exhausting the DTA’s review procedures in the Court of Appeals for the District of Columbia
Circuit.47
As to whether these legislative reforms received satisfactory public comment and debate, the USA PATRIOT Act,
in particular, which was a highly complex and lengthy piece of legislation, received scant deliberation and was
signed into law by President Bush slightly more than one month after the September 11, 2001, attacks.
48
II. General Questions on Criminal Proceedings and Special Measures
The general principles of criminal procedure in the United States find their origin in the Bill of Rights amended to
the United States Constitution. One of the central principles underlying these procedural guarantees is that no
person shall be deprived of life, liberty, or property without “due process of law.”
49 Some of the specific procedural
rights include: the right not to be compelled to be a witness against oneself, the right to a speedy and public
trial, the right to be tried by an impartial jury, the right to be informed of the nature and cause of the accusation,
the right to be confronted with witnesses against oneself, the right to compulsory process to obtain witnesses,
and the right to assistance of counsel.50 These are supplemented, in part, by the Federal Rules of Criminal Procedure.
51
The presumption of innocence attaches when one is first charged, and it disappears after a defendant has been
afforded a fair trial and convicted.
52 The presumption, however, “has no application to a determination of the
rights of a pretrial detainee during confinement before his trial has even begun.”53 On the other hand, the right
against self-incrimination “can be asserted in any proceeding, civil or criminal, administrative or judicial, investiga-
40
Hamdan v. Rumsfeld, __ U.S. __, 126 S. Ct. 2749, 2762-69 (2006).
41
Id. at 2786-97.
42
Nos. 06-1195, 06-1196, 2008 WL 2369628 (U.S.) (June 12, 2008).
43
Id. at *8, *31.
44
Id. at *28.
45
Id. at *8, *41-*44.
46
Id. at *44, *45.
47
Id. at *44-*45.
48
See Becker, supra note 22, at 592.
49
U.S. CONST. amends. V, XIV.
50
U.S. CONST. amends. V, VI.
51
See, e.g., FED. R. CRIM. PROC. 43 (concerning defendant’s presence); FED R. CRIM. PROC. 44 (regarding right to and appointment
of counsel).
52
Herrera v. Collins, 506 U.S. 390, 398, 399 (1993).
53
Bell v. Wolfish, 441 U.S. 520, 533 (1979).
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tory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in
a criminal prosecution or could lead to other evidence that might be so used.”
54 Yet, to qualify for this constitutional
privilege, the communication must be testimonial, incriminating, and compelled.55 For example, in a highly
criticized ruling, the Supreme Court recently held that citizens are now required to disclose their identity to a
police officer when asked, and the Court affirmed a state criminal conviction for such non-disclosure.56
Although the common criminal procedure does not differentiate between citizens and non-citizens, the Guantanamo
Bay cases have brought to the forefront a contentious debate about whether non-resident aliens may
invoke certain procedural protections guaranteed by the United States Constitution and its laws.
57 On the other
hand, special proceedings make a clear distinction between United States citizens and aliens. In particular, the
MCA, in codifying the rules for conducting trials in front of special military commissions, explicitly specifies that
the commissions may try only “alien unlawful enemy combatants engaged in hostilities against the United States
for violations of the law of war and other offenses triable by military commission.”58
The U.S. Constitution provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may require it.”
59 This is known as the Suspension
Clause. In Ex parte Milligan,60 the United States Supreme Court declared that “[m]artial rule can never exist
where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to
the locality of actual war.”61 The Court further explained that “[i]f, in foreign invasion or civil war, the courts are
actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active
military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority,
thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is
allowed to govern by martial rule until the laws can have their free course.”62 In addition, the United States Supreme
Court recently ruled that the Suspension Clause “has full effect at Guantanamo Bay.”63
As to domestic emergencies, the Insurrection Act,
64 which has existed in various forms since 1792,65 currently
allows the President of the United States to use the state militias or armed forces “[w]henever the President
considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the
United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course
of judicial proceedings…”66
54
Kastigar v. United States, 406 U.S. 441, 444-45 (1972).
55
Hibel v. Sixth Judicial District Court, 542 U.S. 177, 189 (2004).
56
Id. at 190-91 (“At best we can tell, petitioner refused to identify himself only because he thought his name was none of the
officer’s business. . . . While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth
Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure
would tend to incriminate him.”).
57
Compare Johnson v. Eisentrager, 339 U.S. 763, 777-78, 784-85 (1950) (ruling that enemy aliens arrested in China and
imprisoned in Germany after World War II could not obtain writs of habeas corpus in American courts on the ground that their
convictions for war crimes had violated, inter alia, the Fifth Amendment’s Due Process Clause), with Rasul v. Bush, 542 U.S.
466, 483 n.1 (2004) (noting that petitioners’ claims “unquestionably describe ‘custody in violation of the Constitution or laws or
treaties of the United States’”). The question of whether nonresident aliens may invoke procedural protections vis-à-vis evidence
obtained extraterritorially will be addressed in Section IV, infra.
58
MCA, supra note 16, § 3(a)(1), 120 Stat. at 2602 (adding 10 U.S.C. § 948b(a) (emphasis added)).
59
U.S. CONST. art. I, § 9, cl. 2.
60
4 Wall. 2 (1866).
61
Id. at 127.
62
Id. (emphasis in original).
63
Boumediene v. Bush, Nos. 06-1195, 06-1196, 2008 WL 2369628 (U.S.), at *31 (June 12, 2008).
64
10 United States Code Annotated §§ 331-335 (West 1998 & Supp. 2008).
65
See John R. Longley III, Note, Military Purpose Act: An Alternative to the Posse Comitatus Act – Accomplishing Congress’s
Intent with Clear Statutory Language, 49 ARIZONA LAW REVIEW 717, 732 (2007).
66
10 United States Code Annotated § 332 (West Supp. 2008).
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The use at a criminal trial of “classified information,” which is defined as “any information or material that has
been determined by the United States Government . . . to require protection against unauthorized disclosure for
reasons of national security,” is regulated by the
Classified Information Procedures Act (CIPA).
67 Under CIPA, either party may move for a pretrial conference to
consider the use of classified information during the proceedings.68 For example, the United States may request
that the court conduct a hearing “to make all determinations concerning the use, relevance, or admissibility of
classified information that would otherwise be made during the trial or pretrial proceedings.”69
Under CIPA, “the Executive’s interest in protecting classified information does not overcome a defendant’s right
to present his case.”
70 Instead, after the trial court determines that classified material is relevant and material to
the case, the item must be admitted unless the government provides an adequate substitution.71 In this regard,
section 6(c)(1) of CIPA provides:
(1) Upon any determination by the court authorizing the disclosure of specific classified information under the
procedures established by this section, the United States may move that, in lieu of the disclosure of such specific
classified information, the court order –
(A) the substitution for such classified information of a statement admitting relevant facts that the specific classified
information would tend to prove; or
(B) the substitution for such classified information of a summary of the specific classified information.
The court shall grant such a motion of the United States if it finds that the statement or summary will provide the
defendant with substantially the same ability to make his defense as would disclosure of the specific classified
information. The court shall hold a hearing on any motion under this section. Any such hearing shall be held in
camera at the request of the Attorney General.72
Where an adequate substitute cannot be found, it is the government’s decision whether to disclose the classified
information or to withhold it.
73 Where the government elects not to disclose the classified information (or where
the defendant is prevented from disclosing classified information material to his defense), the district court “shall
dismiss the indictment or information,” although the court may impose lesser sanctions, including the dismissal of
certain counts, findings against the government on an issue to which the classified information relates, or striking
or precluding all or part of a witness’ testimony.74 In other words, it is up to the Executive Branch to decide
whether “the risk of disclosure of the evidence in its current form outweighs its interest in prosecution.”75
Federal courts in the United States have allowed the use of intelligence information in criminal proceedings,
although, due to the clandestine nature of intelligence warrants and their general unavailability to defense attorneys,
it is impossible to estimate to what extent such information has encroached into the criminal process. That
prosecutors are actively seeking such information is clear from the rare release of an opinion by the secret United
States Foreign Intelligence Surveillance Court in
In re All Matters Submitted to the Foreign Intelligence Surveillance
Court,76 in which the court stated that a fair reading of the government’s proposed new supplementary
67
18 United States Code App. 3 §§ 1-16 (2000 & Supp. IV 2004). The following response on the subject of classified information
is excerpted from Steven W. Becker, Confronting the Non-confrontational: Reassessing the Use of Criminal Evidence
Obtained Extraterritorially in an Age of Global Law Enforcement and Intelligence Cooperation, 78 (1 & 2) REVUE
I
NTERNATIONALE DE DROIT PÉNAL 15 (2007).
68
See 18 United States Code App. 3 § 2 (2000).
69
18 United States Code App. 3 § 6(a) (2000).
70
United States v. Moussaoui, 382 F.3d 453, 476 (4th Cir. 2004).
71
Id.; 18 United States Code App. 3 § 6(c)(1) (2000).
72
18 United States Code App. 3 § 6(c)(1) (2000).
73
Moussaoui, 382 F.3d at 476.
74
18 United States Code App. 3 § 6(e)(2) (2000).
75
Brian McEvoy, Note, Classified Evidence and the Confrontation Clause: Correcting a Misapplication of the Classified Information
Procedures Act, 23 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL 395, 407 (2005).
76
No. 02-429 (U.S. Foreign Intell. Surveillance Ct. 17 May 2002), available at
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minimization procedures, which were suppose to reduce the acquisition and retention of nonpublicly available
information on United States persons, led to only one conclusion:
Criminal prosecutors are to have a significant role
directing [Foreign Intelligence Surveillance Act (FISA)] surveillances
and searches from start to finish in counterintelligence cases having overlapping intelligence and criminal
investigations or interests, guiding them to criminal prosecution. The government makes no secret of this policy,
asserting its interpretation of the [USA PATRIOT] Act’s new amendments which “allows FISA to be used primarily
for a law enforcement purpose.”
Given our experience in FISA surveillances and searches, we find that these provisions . . . particularly those
which authorize criminal prosecutors to advise FBI intelligence officials on the initiation, operation, continuation or
expansion of FISA’s intrusive seizures, are designed to enhance the acquisition, retention and dissemination of
evidence for law enforcement purposes
, instead of being consistent with the need of the United States to “obtain,
produce, and disseminate foreign intelligence information” (emphasis added) as mandated in [50 U.S.C.]
§1801(h) and §1821(4). The 2002 procedures appear to be designed to amend the law and substitute the FISA
for Title III electronic surveillances and Rule 41 searches. This may be because the government is unable to
meet the substantive requirements of these law enforcement tools . . . .77
A concrete example of the use of foreign intelligence information in a criminal case can be seen in the recent
high-profile “terrorism” prosecution of Muhammad Salah and several other defendants in Chicago, Illinois.
78
Salah was originally charged with conspiracy to commit racketeering, knowingly providing and attempting to
provide material support to a Foreign Terrorist Organization,
viz., Hamas, and obstructing justice.79 The government’s
indictment alleged that Salah recruited new members in the United States for Hamas, as well as provided
financial support from America to Hamas.80 The indictment also claimed that Salah traveled to Israel in 1993 to
further these objectives.81 In 1993, Salah was arrested by Israeli authorities and, during his detention, made
various statements to agents of the Israeli Security Agency (ISA), the Israeli National Police, and others.82
Prior to his criminal trial in the United States, Salah moved to suppress these written and oral statements on the
grounds that they were obtained by torture, averring that his statements were made only after enduring months of
“an on-going nightmare of unmitigated and unbearable terror, threats, physical and psychological abuse, and
sensory and sleep deprivation carried out by numerous Israeli interrogators, soldiers, police officers, jail guards
and others working with the Israeli authorities.”
83
The United States government countered by filing a motion to close the suppression hearing to the public when
the ISA agents testified.
84 The prosecution asserted that such closure was necessary to protect the safety of the
ISA agents, as well as the Israeli agency’s intelligence gathering methods, because this information was classified.
85
Israel had never previously permitted its ISA agents to give live testimony in a U.S. court.86
77
Id. at 22 (emphasis in original). This opinion, however, was reversed by the first and only decision ever issued by the United
States Foreign Intelligence Surveillance Court of Review. See In re Sealed Case No. 02-001 (U.S. Foreign Intell. Surveillance
Ct. Rev. 18 Nov. 2002), available at http://news.findlaw.com/hdocs/docs/terrorism/fisa111802opn.pdf.
78
The following response on the use of intelligence information in criminal trials is
excerpted from Steven W. Becker, Closing the Door on Justice: Secret Evidence and the Lack of Transparency in Court
Proceedings in the Wake of the “War on Terrorism,” in TERRORISM AND THE LAW: THE FUTURE UNCHAINED (Davor Derencinovic
ed., forthcoming 2008).
79
United States v. Marzook, 435 F. Supp. 2d 708, 713 (N.D. Ill. 2006). The government subsequently dropped the material
support of terrorism charge. See M. Robinson, Feds Drop Count in Salah Trial, DAILY SOUTHTOWN, 23 Sept. 2006, at A1, A6.
80
Marzook, 435 F. Supp. 2d at 713.
81
Id.
82
United States v. Marzook, 412 F. Supp. 2d 913, 916 (N.D. Ill. 2006).
83
Marzook, 435 F. Supp. 2d at 714.
84
Marzook, 412 F. Supp. 2d at 916.
85
Id. at 916, 917.
86
Id. at 918.
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Pursuant to procedures set forth in CIPA, and after considering the government’s submissions
ex parte and in
camera,87 the district judge ordered that the suppression hearing be held behind closed doors during the testimony
of the ISA agents.88 In this regard, the judge ruled that “[t]he United States has an overriding interest in
maintaining the agents’ sensitive testimony – including testimony regarding intelligence gathering methods and
counterintelligence measures – as classified in order to protect the national security of Israel and the relationship
between Israel and the United States of sharing national security information.”89
III. Pro-active Enforcement (Common Police or Common Criminal Proceedings, Special Proceedings
).
In the United States, both intelligence agents and law enforcement personnel have the competence, under specified
circumstances, to utilize coercive measures. Following the exposure of widespread intelligence abuses in the
late 1960s and early 1970s, there was a significant effort in the United States “to create a wall between law enforcement
and intelligence agencies and to eject the CIA from domestic activities.”
90 This “wall” is particularly
evident in the distinct statutory provisions that govern wiretapping and eavesdropping for law enforcement and
intelligence, viz.:91 Title III,92 which regulates wiretapping and eavesdropping during criminal investigations, and
the 1978 Foreign Intelligence Surveillance Act (FISA),93 which governs the electronic surveillance of “agents of a
foreign power inside the United States for the purpose of gathering foreign intelligence.”94
Yet, following the events of September 11th, the wall separating law enforcement and intelligence was quickly
dismantled. In particular, section 218 of the USA PATRIOT Act lowered the standard by which foreign intelligence
information can be gathered for use as evidence in criminal cases. Prior to passage of the USA PATRIOT
Act, the counterintelligence arm of the Federal Bureau of Investigation (FBI), as opposed to its law enforcement
branch, was authorized under FISA to conduct electronic surveillance and to carry out physical searches without
satisfying the probable cause standard required in criminal cases.
95 FISA mandated only that the government
applicant had probable cause to believe that the target was “an agent of a foreign power.”96 Yet, because of the
extraordinary nature of wiretaps and searches under FISA (the target “is never notified of the intrusion”), the use
of such methods was permitted only on the understanding that such surveillance techniques would not be utilized
for investigating crimes.97 Congress, however, recognized that, during the process of gathering foreign intelligence
information, evidence of crimes, such as espionage, might be collected.98 Thus, Congress allowed the use
of material collected under FISA to be used as evidence in criminal cases, but only in circumstances where “the
purpose” of the investigation was the gathering of foreign intelligence.99 Otherwise, FISA would provide the government
with a loophole by which to bypass the traditional probable cause requirements mandated for searches
and seizures in criminal cases.100 Section 218 of the USA PATRIOT Act, however, amended FISA to allow wiretaps
and searches as long as “a significant purpose” of the surveillance is the gathering of foreign intelligence
87
Id. at 915, 919.
88
Id. at 919.
89
Id. at 926.
90
Kate Martin, Intelligence, Terrorism, and Civil Liberties, 29 HUMAN RIGHTS 5, 5 (Winter 2002).
91
Id.
92
18 U.S.C. §§ 2510-2522 (2000).
93
50 U.S.C.A. §§ 1801-1862 (West 1991 & Supp. 2002).
94
Martin, supra note 90, at 5.
95
James X. Dempsey, Civil Liberties in a Time of Crisis, 29 HUMAN RIGHTS 8, 10 (Winter 2002).
96
50 U.S.C. §§ 1805(a)(3)(A), 1824(a)(3)(A) (2000).
97
Dempsey, supra note 95, at 10.
98
Id.
99
Id. See 50 U.S.C. §§ 1804(a)(7)(B), 1823(a)(7)(B) (2000).
100
Dempsey, supra note 95, at 10; U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.”).
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information.
101 Yet, very recently, a federal district court ruled that the aforementioned amendment was unconstitutional,
102
explaining:
In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation
that it will authorize such surveillance only when appropriate. The [government] here is asking this court to, in
essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This
court declines to do so.103
In the United States, the FBI is the leading national law enforcement agency, and the agency is bifurcated into a
general crimes division, responsible for traditional law enforcement duties, and a counterintelligence division,
which gathers “foreign intelligence relating to espionage or international terrorism inside the United States.”
104
The Central Intelligence Agency (CIA), by contrast, has been statutorily prohibited from exercising any “police,
subpoena, or law enforcement powers or internal security functions”
105 and has always been understood to direct
its intelligence operations overseas and to focus on foreign nationals.
Moreover, information obtained through coercive measures may be shared between intelligence and police
agencies. For example, section 203 of the USA PATRIOT Act provides that “it shall be lawful for foreign intelligence
or counterintelligence . . . or foreign intelligence information obtained as part of a criminal investigation to
be disclosed to any Federal law enforcement, intelligence . . . or national security official in order to assist the
official receiving that information in the performance of his official duties.”106 Similarly, section 905 provides, in
pertinent part, that “the Attorney General, or the head of any other department or agency of the Federal Government
with law enforcement responsibilities, shall expeditiously disclose to the Director of Central Intelligence . . .
foreign intelligence acquired by an element of the Department of Justice or an element of such department or
agency, as the case may be, in the course of a criminal investigation.”107
In addition, on May 14, 2004, Attorney General John Ashcroft announced the National Criminal Intelligence
Sharing Plan, which has been described as “a nationwide communications capability linking all levels of law
enforcement personnel – including officers on the street, intelligence analysts, unit commanders, and law enforcement
executives – for the purpose of sharing critical data to prevent terrorism and crime.”
108 Furthermore, on
December 17, 2004, President Bush signed into law the “Intelligence Reform and Terrorism Prevention Act of
2004.”109 This act creates a new position of Director of National Intelligence, who, among other duties, will be
responsible for ensuring the sharing of information between agencies.110
With respect to physically or emotionally coercive investigative techniques, torture is specifically prohibited by
federal law
111 and is codified as a criminal offense.112 “Torture” is defined as “an act committed by a person acting
under the color of law specifically intended to inflict sever physical or mental pain or suffering (other than pain
or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”113
101
USA PATRIOT Act, supra note 21, § 218, 115 Stat. at 291. See Dempsey, supra note 95, at 10.
102
Mayfield v. United States, 504 F. Supp. 2d 1023, 1036-43 (D. Or. 2007).
103
Id. at 1042.
104
Martin, supra note 90, at 5.
105
50 U.S.C. § 403-3(d)(1) (2000).
106
USA PATRIOT Act, supra note 21, § 203(d)(1), 115 Stat. at 281.
107
Id. § 905(a)(2), 115 Stat. at 388-89 (emphasis added).
108
U.S. Attorney General Ashcroft Supports Global’s National Criminal Intelligence Sharing Plan, Global News, Fourth Quarter
– 2004, at 1.
109
See President George W. Bush, President Signs Intelligence Reform and Terrorism Prevention Act (Office of the Press
Secretary, 17 Dec. 2004), available at http://www.whitehouse.gov/news/releases/2004/12/20041217-1.html.
110
Id.
111
18 U.S.C. § 2340 (2000 & Supp. V 2005).
112
18 U.S.C. § 2340A (2000 & Supp. V 2005).
113
18 U.S.C. § 2340 (2000 & Supp. V 2005).
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Unfortunately, under the Bush Administration, the practice of torture has, in effect, become institutionalized.
114 In
this regard, amongst the infamous White House Torture Memoranda,115 perhaps the most deplorable example is
the August 1, 2002, memorandum in which Assistant Attorney General Jay S. Bybee concluded that the infliction
of severe pain or suffering does not constitute torture unless such serious physical injury is “so severe that death,
organ failure, or permanent damage resulting in a loss of significant body function will likely result.”116 In fact,
owing to worldwide distribution of the sadistic photos from Abu Ghraib117 and the allegations of like practices
carried out against the detainees being held at Guantanamo Bay,118 the reputation of the United States across
the globe has suffered incalculably. Inexplicably, the White House continues to maintain that torture practices are
legal – most recently asserting that “waterboarding” is permissible, after revealing that the CIA used the technique
on three al-Qa’èda detainees following the September 11th attacks.119
In a related area, the United States has participated extensively in the practice of “extraordinary rendition,” by
which torture has been further facilitated.
120
IV. Pre-trial Setting (Common Criminal Proceedings, Special Proceedings)
Since September 11, 2001, there has been a dramatic escalation in the exercise of coercive powers by investigating
authorities.
121
One example is the National Security Agency’s (NSA’s) illegal monitoring of international phone calls and e-mail
communications between American citizens inside the United States and persons outside the country: “Months
after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on
Americans and others inside the United States to search for evidence of terrorist activity without the courtapproved
warrants ordinarily required for domestic spying . . . .”
122
Although countless American citizens and groups may have been affected by the NSA’s clandestine monitoring
program, at least one organization may be able to prove it in a court of law. According to a lawsuit filed against
President Bush and various government agencies by the Al-Haramain Islamic Foundation, Inc. (Al-Haramain),
the NSA, based on warrantless surveillance of international communications between Al-Haramain’s director and
its American attorneys, provided information to the Office of Foreign Assets Control (OFAC), which resulted in
the freezing of Al-Haramain’s assets.
123 Apparently, the OFAC inadvertently turned over to Al-Haramain’s lawyers
a phone log proving the NSA’s surveillance of the organization and exposing the existence of the NSA’s illegal
114
M. Cherif Bassiouni, The Institutionalization of Torture Under the Bush Administration, 37 CASE WESTERN RESERVE JOURNAL
OF INTERNATIONAL LAW 389, 396-411 (2006).
115
These memoranda are compiled as an Appendix to Case Western Reserve University School of Law’s Symposium issue
entitled “Torture and the War on Terror,” 37 CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW 615 ff. (2006).
116
Id., Memorandum from Jay S. Bybee, Assistant Attorney General, U.S. Dep’t of Justice, to Alberto R. Gonzales, Counsel
to the President, Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A (1 Aug. 2002), at 13.
117
Bassiouni, supra note 114, at 398.
118
Rory T. Hood, Guantanamo and Citizenship: An Unjust Ticket Home?, 37 CASE WESTERN RESERVE JOURNAL OF
I
NTERNATIONAL LAW 555, 555-56 (2006).
119
White House: Waterboarding is Legal, CHICAGO TRIBUNE, 7 Feb. 2008, at 4.
120
See Michele Nino, The Abu Omar Case in Italy and the Effects of CIA Extraordinary Renditions in Europe on Law Enforcement
and Intelligence Activities, 78 (1 & 2) REVUE INTERNATIONALE DE DROIT PÉNAL 113 (2007); Leila Nadya Sadat, Ghost
Prisoners and Black Sites: Extraordinary Rendition under International Law, 37 CASE WESTERN RESERVE JOURNAL OF
I
NTERNATIONAL LAW 309, 314-17 (2006).
121
The following response on the use of coercive powers is excerpted from Steven W. Becker, The Effect of New Technologies
on the Criminal Justice System: Caveats from the United States’ Experience (forthcoming 2008 in Brazil).
122
James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, NEW YORK TIMES, 16 Dec. 2005, at 1. See
Zmarak Khan,
The National Security Agency (NSA) Eavesdropping on Americans: A Programme that is Neither Legal Nor
Necessary, 2(2) UTRECHT LAW REVIEW 61, 71-80 (2006); Bruce Fein, A Defining Constitutional Moment, WASHINGTON LAWYER,
May 2006, at 35, 35-40.
123
See Al-Haramain Islamic Foundation, Inc. v. Bush, 451 F. Supp. 2d 1215, 1217-18 (D. Or. 2006), rev’d and remanded on
other grounds, 507 F.3d 1190 (9th Cir. 2007).
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monitoring program.
124 The document has now been confiscated by the government and placed in a “secure”
facility.125
Another means utilized to obtain communication information without a warrant is the secret “national security
letter” (NSL). For example, the FBI is authorized by statute to issue national security letters to wire or electronic
communications service providers in order to obtain a wide range of information about a target’s telephone or
internet activity:
126
Through the use of NSLs, the government can unmask the identity of internet users engaged in anonymous
speech in online discussions. It can obtain an itemized list of all of the emails sent and received by the target of
the NSL, and it can then seek information on individuals communicating with that person. It may even be able to
discover the websites an individual has visited and queries submitted to search engines.
127
What makes the national security letter so effective, however, is its nondisclosure provision, which constitutes, in
essence, a perpetual gag order. Prior to recent amendments to the statute, the recipient of such a letter was
prohibited from disclosing to “any person,” including its own attorneys, that the FBI had sought access to information.
128
This prohibited the recipient from mounting any challenge to the letter or otherwise exposing the government’s
warrantless collection methods. Although the nondisclosure provision was subsequently changed to permit
the recipient to consult with its attorneys, a federal district court recently held that the gag order provision was
unconstitutional under the First Amendment, and it similarly ruled that a provision limiting judicial review of nondisclosure
requirements violated the First Amendment and the separation of powers.129
Moreover, section 213 of the USA PATRIOT Act permits “sneak and peak” searches, whereby law enforcement
officials are authorized to delay notice of physical or electronic searches by making a showing that “immediate
notification of the execution of the warrant may have an adverse result.”
130 In other words, federal agents could
“enter your home, office, or other private place and conduct a search, take photographs, and download your
computer files without notifying you until after the fact.”131 Thus, the contemporaneous notice that is normally
required by the Fourth Amendment could be suspended for months, thereby depriving the target of the opportunity
to challenge the execution or terms of the warrant.
An example of the use of “sneak and peak” searches can be seen in the case of Brandon Mayfield, the Oregon
attorney who was wrongfully arrested in connection with the March 11, 2004, Madrid bombings after the FBI
misidentified a fingerprint as belonging to him.132 After the wrongful fingerprint identification, Mayfield alleges that
the FBI repeatedly searched his home when his family was away and likewise conducted searches of his law
office.133
In addition, a new and invasive technology being employed in criminal investigations by the FBI in organized
crime cases has come to light,
viz., the “roving bug.”134 This refers to a practice whereby the government remotely
activates a cell phone’s microphone and thereby is able to surreptitiously listen in on any conversations
124
Id. at 1219.
125
Id.
126
See 18 U.S.C. § 2709(a) (2000) (“A wire or electronic communication service provider shall comply with a request for
subscriber information and toll billing records information, or electronic communication transactional records in its custody or
possession made by the Director of the Federal Bureau of Investigation . . . .”).
127
Doe v. Gonzales, 500 F. Supp. 2d 379, 395 (S.D.N.Y. 2007).
128
See 18 U.S.C.A. § 2709(c) (West 2000 & Supp. 2007).
129
Gonzales, 500 F. Supp. 2d at 425.
130
USA PATRIOT Act, supra note 21, § 213, 115 Stat. at 285-86.
131
Anthony D. Romero, In Defense of Liberty at a Time of National Emergency, 29 HUMAN RIGHTS 16, 16 (Winter 2002).
132
Mayfield v. United States, 504 F. Supp. 2d 1023, 1026-29 (D. Or. 2007).
133
Id. at 1028.
134
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taking place near the phone, even if the mobile phone is turned off.
135 The Department of Homeland Security has
also just announced plans “to use U.S. spy satellites for domestic security and law-enforcement missions.”136
Furthermore, there has been a marked shift in powers in the “war on terrorism” in favor of the executive branch.
This has provoked strong corrective language from the United States Supreme Court: “Indeed, the position that
the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader
detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves
only to
condense power into a single branch of government. We have long since made clear that a state of war is
not a blank check for the President…”137
The use of evidence obtained abroad is permissible. The more complex question, however, especially in the
context of “terrorism” prosecutions, is under what circumstances may a nonresident alien invoke constitutional
protections to bar the use of extraterritorial evidence in a criminal case where the alien is tried in the United
States. The answer appears to turn on when the particular right attaches.
138
For example, in
United States v. Verdugo-Urquidez,139 the United States Supreme Court decided the question of
whether the Fourth Amendment applies to a search and seizure by U.S. agents of property that is owned by a
nonresident alien and located in a foreign country.140 In Verdugo-Urquidez, the defendant, a Mexican citizen and
resident, was alleged to have been involved in an organization that smuggled narcotics into the United States.141
After U.S. officials obtained an arrest warrant, and following their discussions with Mexican authorities, the Mexican
police arrested the defendant and turned him over to U.S. marshals at the border.
142 After the defendant was
arrested, an agent of the United States Drug Enforcement Agency (DEA) decided to arrange for searches of the
defendant’s residences located in Mexico, hoping to find evidence of other crimes.143 Eventually, the DEA and
the Mexican Federal Judicial Police searched the defendant’s homes and seized certain documents, including a
tally sheet allegedly memorializing the quantities of marijuana smuggled into the United States.144
Prior to his trial in the United States, the defendant moved to suppress the evidence seized during these
searches on the grounds that it was obtained in violation of the Fourth Amendment because the government
failed to justify its warrantless searches.
145 The trial court granted the defendant’s suppression motion, and the
appellate court affirmed the lower court’s suppression ruling.146 The United States Supreme Court, however,
reversed the holding of the appellate court.147
Prior to examining the text of the Fourth Amendment, the Court pointed out that the amendment’s prohibition
against unreasonable searches and seizures is “‘fully accomplished’
at the time of an unreasonable governmental
intrusion,” regardless of whether the evidence is sought for use in a later criminal trial.148 Significantly, the
Court contrasted this with the Fifth Amendment’s prohibition against compulsory self-incrimination, which it described
as a “fundamental trial right,” “a constitutional violation [of which] occurs only at trial.”149 Accordingly, the
135
Id.
136
Eileen Sullivan, Plan to Use Spy Satellites for Homeland Security-related Images Moves Forward, CHICAGO DAILY LAW
B
ULLETIN, 13 Feb. 2008, at 3.
137
Hamdi v. Rumsfeld, 542 U.S. 507, 535-36 (2004) (emphasis in original).
138
The following response on the use of extraterritorial evidence is excerpted from Becker, Confronting the Nonconfrontational,
supra
note 67.
139
494 U.S. 259 (1990).
140
Id. at 261.
141
Id. at 262.
142
Id.
143
Id.
144
Id. at 262-63.
145
Verdugo-Urquidez, 494 U.S. at 263.
146
Id.
147
Id. at 275.
148
Id. at 264 (emphasis added).
149
Id.
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Court concluded that if there were a Fourth Amendment violation, “it occurred solely in Mexico” – not at the time
of the trial later conducted in the United States.
150
With respect to the language of the Fourth Amendment, the Court noted that it employed the phrase “the people,”
as opposed to the words “person” and “accused” used in the Fifth and Sixth Amendments, thereby suggesting
that the Fourth Amendment was restricted to a class of individuals who were part of the national community.
151 In
sum, the Court ruled that “the purpose of the Fourth Amendment was to protect the people of the United States
against arbitrary action by their own government; it was never suggested that the provision was intended to
restrain the actions of the Federal Government against aliens outside of the United States territory.”152
By comparison, in
United States v. Bin Laden,153 the court rejected the government’s argument that a criminal
defendant on trial in the United States does not enjoy the privilege against self-incrimination because he is a
nonresident alien whose only connections to the United States are his alleged violations of U.S. law and his
subsequent U.S. prosecution.154 The court noted that the government incorrectly framed the legal inquiry as
being dependent on the extraterritorial application of the Fifth Amendment, instead of focusing on the time at
which the privilege against self-incrimination attaches: “[A]ny violation of the privilege against self-incrimination
occurs, not at the moment law enforcement officials coerce statements through custodial interrogation, but when
a defendant’s involuntary statements are actually used against him at an American criminal proceeding.”155
Finally, the closed suppression hearing in the previously mentioned prosecution of Muhammad Salah
156 raised
particularly serious due process concerns. Therein, although Salah and his attorneys were permitted to be present
at the closed hearing during the majority of the testimony of the ISA agents,157 the district court, in a radical
departure from conventional procedure, conducted a portion of the hearing ex parte and in camera158 – meaning
that the government was allowed to present its case in secret to the judge alone while Salah and his attorney
were barred from the proceedings. In the words of the court: “[T]he government presented limited testimony to
the Court and gave the Court access to certain documents outside the presence of Defendant Salah and his
counsel.”159
V. Trial Setting (Criminal Proceedings, Special Proceedings)
In
United States v. Moussaoui,160 the defendant sought access to a witness being held by the government whom
Moussaoui asserted would support his claim that he was not involved in the September 11, 2001, attacks upon
the United States.161 Finding that the witness’ testimony was material to Moussaoui’s defense, the district judge
ordered that a deposition be taken with certain security precautions.162 Subsequently, the appellate court remanded
the case for a determination of whether any CIPA substitution existed that would place Moussaoui in
substantially the same position as the deposition.163 The district court rejected the government’s proposed substitutions
on the grounds that (a) the information in the redacted reports was unreliable and (b) the substitutions
were flawed.164 Thereafter, the government refused to provide access to the witness for purposes of the defense
150
Id.
151
Verdugo-Urquidez, 494 U.S. at 265-66.
152
Id. at 266.
153
132 F. Supp. 2d 168 (S.D.N.Y. 2001).
154
Id. at 181.
155
Id. at 181-82.
156
See supra notes 78 to 89 and accompanying text.
157
United States v. Marzook, 412 F. Supp. 2d 913, 917 (N.D. Ill. 2006); United States v. Marzook, 435 F. Supp. 2d 708, 746
(N.D. Ill. 2006).
158
Marzook, 435 F. Supp. 2d at 746.
159
Id.
160
382 F.3d 453 (4th Cir. 2004).
161
Id. at 458.
162
Id.
163
Id.
164
Id. at 459.
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taking a deposition.
165 The court later granted the defendant access to several other witnesses for the purpose of
taking depositions.166
On appeal, the Fourth Circuit Court of Appeals, although agreeing with the district court’s ruling that the proposed
substitutions submitted by the government were inadequate, rejected the district judge’s conclusion that there
could be no adequate substitution for the witnesses’ deposition testimony.
167 The appellate court concluded that
the redacted summaries, which were predicated upon the redacted reports, “provide an adequate basis for the
creation of written statements that may be submitted to the jury in lieu of the witnesses’ deposition testimony.”168
In a footnote, however, the Fourth Circuit wrote that “[w]e are mindful of the fact that no written substitution will
enable the jury to consider the witnesses’ demeanor in determining their credibility.”
169
After subsequently pleading guilty, Moussaoui is now on appeal seeking a ruling from the Fourth Circuit Court of
Appeals that would allow him to withdraw his guilty plea. In his appeal, Moussaoui raises two issues pertaining to
the deprivation of right to counsel, both which stem from the security measures instituted by the court in his
case.
170 First, he asserts that because he was told that he could only use an attorney who held a security clearance,
he was deprived of the lawyer of his choice.171 Secondly, and probably more significantly, Moussaoui
contends that his plea was not knowingly entered into because his lawyers were barred from sharing with him the
classified information the government had disclosed to them.172 As stated in Moussaoui’s brief, “Incredibly, defense
counsel had evidence specifically found to be material and exculpatory as to Moussaoui, but at the time of
the plea his lawyers could not discuss that evidence or even tell Moussaoui it existed.”173
VI. Post-Trial Setting (Criminal Proceedings, Special Proceedings)
Lastly, with respect to the appellate review of final decisions of the special military commission, the DTA,
174 as
amended by the MCA,175 provides that the United States Court of Appeals for the District of Columbia Circuit
shall have exclusive jurisdiction.176 Review in capital cases or cases in which an alien is sentenced to a term of
imprisonment of 10 years or more shall be as of right; in all other circumstances, review is discretionary.177 The
scope of review, however, is limited to “whether the final decision was consistent with the standards and procedures”
specified for the special military commissions and, to the extent applicable, “whether the use of such
standards and procedures to reach the final decision is consistent with the Constitution and laws of the United
States.”178 This, of course, constitutes a gross deviation from normal appellate review, as it precludes a determination
on the merits, including an assessment of the sufficiency of the evidence.
165
Id.
166
Moussaoui, 382 F.3d at 459.
167
Id. at 477-78.
168
Id. at 478.
169
Id. at 481 n.38.
170
Adam Liptak, Right to Counsel, in Right Situation, CHICAGO DAILY LAW BULLETIN, 26 Feb. 2008, at 6.
171
Id.
172
Id.
173
Id.
174
DTA, supra note 26, § 1005(e)(3), 119 Stat. at 2743.
175
MCA, supra note 16, § 9, 120 Stat. at 2636-37.
176
DTA, supra note 26, § 1005(e)(3)(A), 119 Stat. at 2743.
177
Id. § 1005(e)(3)(B), 119 Stat. at 2743.
178 Id. § 1005(e)(3)(D), 119 Stat. at 2743.
