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Attorney general nominee Michael Mukasey has a distinguished record, and, if confirmed, he will likely provide the leadership the Justice Department needs. But Mukasey believes that the federal criminal justice system cannot handle terrorism cases, and on that, he’s wrong. From 2003 to 2007, I prosecuted terrorism cases in the Eastern District of Virginia — the jurisdiction responsible for the cases of Zacarias Moussaoui, Ahmed Omar Abu Ali, and the “Virginia Jihad” network. As an assistant U.S. attorney, I saw firsthand how judges administer major terrorism prosecutions. Contrary to Mukasey’s position, the courts have done a commendable job of protecting national security interests while ensuring that defendants receive a fair trial. In an Aug. 22 commentary in The Wall Street Journal, Mukasey makes three main arguments that the criminal justice system cannot adequately deal with terrorism prosecutions. First, he argues that too few prosecutions have occurred, and even those few have unduly strained the courts. Second, he maintains that prosecutions increase the risk that sensitive intelligence information may be disclosed in a way that damages national security and hinders counterterrorism cooperation by other governments. Third, he suggests that rules of procedure and evidence applicable in ordinary criminal cases cannot work in terrorism cases. None of these arguments withstand scrutiny. TOO FEW CASES? With regard to Mukasey’s first argument: The sheer number of convictions obtained in terrorism cases by the Justice Department is an inapt measure of the courts’ ability to adjudicate such cases. It says nothing about the comparative strength of the government’s evidence in each case, the government’s decision on whether to refrain from using intelligence information, the quality of witnesses, the complexity of the legal issues, or the defense’s arguments. As for the strain on judicial resources, no district since Sept. 11, 2001, has handled a more demanding allotment of major terrorism cases than the Eastern District of Virginia, and I am unaware of any presiding judge who questioned trying those cases in federal court. To the contrary, the judges saw those cases as important opportunities to demonstrate the courts’ ability to adjudicate terrorism cases in an effective, responsible, and constitutionally fair manner. SAFEGUARDING SECRETS It is true, as Mukasey notes, that criminal prosecution of terrorists opens the door to defense attempts to seek sensitive, classified information in order to discover exculpatory evidence. It is also true that information shared confidentially with U.S. authorities by foreign law enforcement or intelligence services can be at risk of disclosure under discovery rules. Mukasey ignores, however, the legal mechanisms to manage these risks. The Classified Information Procedures Act, originally enacted to prevent “graymail” (an attempt by a defendant to derail a criminal trial by threatening to disclose classified information), provides a statutory shield for protecting sensitive intelligence sources and methods from improper disclosure. Under CIPA, the government may submit classified, ex parte briefs to a district court — that is, briefs that the defense may not see — describing the origin and sensitivity of the intelligence information at issue, the relevance of the information, and the damage to national security interests that would occur if the information were disclosed. Courts may also hold ex parte hearings, where government attorneys, in a sealed courtroom without defense counsel, make their arguments in support of nondisclosure. In some cases, courts have found that the intelligence information is irrelevant and need not be disclosed at all to the defense. In other cases, they have required the government to craft a substitute for the information that, to the court’s satisfaction, substantially enables the defendant to prepare his defense. Those substitutions are often classified and may be shared only with defense attorneys who have qualified for a security clearance. In those instances in which courts permit the defense at trial to use information derived from classified sources, they typically permit the information to be modified to avoid the public revelation of intelligence sources and methods. CIPA is a proven means for preventing the public disclosure of classified information. Consider the case of Falls Church, Va., resident Ahmed Omar Abu Ali (whom I helped prosecute and convict). He was jailed in Saudi Arabia in 2003 after joining an al-Qaida cell there, and his defense sought to use classified documents about events that had occurred substantially after his arrest and alleged torture in Saudi Arabia. The arrest and alleged torture were the primary issues then before the court. After a closed but adversarial CIPA hearing in which the court considered the documents and heard argument from both sides, it concluded that the documents were irrelevant and prevented their use at trial. Consider also electronic surveillance under the Foreign Intelligence Surveillance Act, where courts have been particularly careful to prevent the disclosure of intelligence sources and methods. Defense counsel routinely seek any materials relating to electronic surveillance of their client, including the government’s application for a FISA warrant. FISA expressly authorizes district courts to review classified submissions from the government ex parte to determine whether the surveillance was lawfully authorized and conducted. Although the government must disclose any statements of a defendant recorded under FISA surveillance, no court has yet required the government to produce its underlying affidavit seeking a FISA warrant, which contains specific and highly sensitive information. Courts have also limited the access that terrorism defendants may have to high-value detainees in U.S. custody. In the case of Zacarias Moussaoui, for example, U.S. District Judge Leonie Brinkema denied Moussaoui’s request that Sept. 11 mastermind Khalid Sheikh Mohammed and other detainees testify in person to answer questions about his alleged involvement in the Sept. 11 conspiracy. In subsequent proceedings, the U.S. Court of Appeals for the 4th Circuit ruled that Moussaoui could submit questions to the U.S. intelligence community to be posed to the detainees. Mukasey’s argument that U.S. discovery rules and due process requirements cause foreign governments to refrain from sharing intelligence with U.S. authorities is also belied by events since Sept. 11. During my tenure at the Justice Department from 2001 to 2007, intelligence sharing on counterterrorism matters increased dramatically. In no case was foreign information sharing and counterterrorism cooperation more dramatically illustrated than in the Abu Ali prosecution. There, for the first time, the Saudi government permitted Saudi security officers (including a general) to testify in an American criminal proceeding and to face rigorous cross-examination by defense attorneys — even though the officers would have to answer questions about Saudi interrogation methods said to violate international human rights standards. STANDARD RULES Finally, Mukasey’s view that the standard rules of evidence and criminal procedure are insufficient in terrorism cases is belied by experience. In the Abu Ali case, for example, certain items the government sought to admit into evidence at trial had been seized at al-Qaida safe houses in Saudi Arabia by Saudi security officers, without any involvement by U.S. officials. After hearing testimony by Saudi officers who participated in the search, U.S. District Judge Gerald Lee, employing the same standards used in ordinary criminal cases, found that the prosecution had sufficiently authenticated and established a chain of custody for the evidence. Similarly, in denying Abu Ali’s pretrial motion to suppress confessions he gave in Saudi Arabia on the grounds that he allegedly had been tortured, Lee applied well-settled standards of voluntariness and methods of assessing witness credibility. To be sure, certain terrorism cases may not be feasible to try in a federal court. For example, the cases involving Khalid Sheikh Mohammed and certain other detainees held at Guant�namo Bay in Cuba may be too heavily dependent on sensitive intelligence sources and methods or too fraught with other issues such as hearsay or coerced statements. In other cases, the government must make tough choices to pare down its potential charges, as in the Jos� Padilla case, in order to avoid the disclosure of intelligence sources and methods, focus on admissible evidence, and preserve a case for criminal prosecution. In most instances, however, the government should look to the federal courts to resolve terrorism cases. The courts have shown that they are up to the challenge, the government has the legal means to prevent the disclosure of sensitive intelligence, and the core constitutional rights of defendants can be protected. Trying these cases in a public forum governed by constitutional and procedural rules demonstrates that democracy and security are not mutually exclusive. And that fosters needed public confidence in our system of justice — something that the next attorney general should make a high priority.
David H. Laufman is a partner in Washington, D.C.’s Kelley Drye Collier Shannon. From 2003 to 2007, he served as an assistant U.S. attorney for the Eastern District of Virginia. From 2001 to 2003, he served as chief of staff to then-Deputy Attorney General Larry Thompson and assisted in the Justice Department’s responses to the Sept. 11 attacks.

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