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Senior Department of Justice officials say the department will urge President George W. Bush to make sure that any prosecutions for the Sept. 11 terrorist attacks be brought in U.S. federal court, instead of an international or military tribunal. “We’re going to do it the plain old-fashioned way,” says a senior federal prosecutor who declined to be identified. Another senior DOJ official, who also did not wish to be identified, agreed. This comes after suggestions by some legal experts that if any individuals are prosecuted for the Sept. 11 attacks, domestic trials would lack international credibility. Conversely, more hawkish commentators have suggested military prosecutions, saying suspects in the worst terrorist attack in U.S. history should not receive the benefit of a civilian trial. The White House deferred inquiries to Attorney General John D. Ashcroft, whose office did not respond to inquiries on the issue, but has stated that 500 people have been detained or arrested in connection with the investigation. Unlike previous terrorism cases, the nascent prosecution in this attack is being run out of DOJ headquarters in Washington, D.C., rather than the U.S. Attorney’s office in Manhattan, where several similar prosecutions have been conducted in the past five years. Former U.S. Attorney General Dick Thornburgh, now a partner with the Washington, D.C., office of Kirkpatrick & Lockhart, says he favors domestic trials, and is not surprised by the desire among Justice Department lawyers to have prosecutions brought in the United States. “There’s always been a reluctance among senior DOJ officials in all administrations to [lose] control of a prosecution to some international or foreign tribunal,” says Thornburgh, who served as attorney general during the administration of former President George H.W. Bush. “We’re comfortable with our procedures, we feel they provide maximum protections.” Thornburgh adds that there are more populist reasons for keeping any prosecutions in the U.S., given that the destruction of four U.S. airliners, the World Trade Center and a part of the Pentagon killed some 5,500 Americans and injured thousands more. “A practical question is that we have a death penalty, and there’s little likelihood of having that internationally,” he explains. “These are American citizens that were killed.” INTERNATIONAL TRIBUNAL Thornburgh says any criticism from abroad that a U.S. prosecution would be stacked against the defendants is hypocritical. “It would ill-behoove some of those Middle Eastern countries whose systems aren’t nearly as fair,” he says. But Harvard Law School Professor Anne-Marie Slaughter says the effort by the Bush administration to generate international support for financial, political and military retaliation presents a golden opportunity to build a lasting legal coalition through the creation of a world tribunal. “The advantage of a national prosecution is that it’s certain, efficient and swift, but we will be winning the battle and losing the war,” says Slaughter, director of Graduate and International Legal Studies at Harvard. “We will be failing to capitalize on a real opportunity to bring judges and lawyers around the world together in a real international effort to fight terrorism.” Slaughter’s tribunal would be composed of judges from the highest courts of each participating nation. It would be run by two co-chairpersons: one U.S. Supreme Court justice and his or her equivalent from an Islamic nation. Slaughter cautions that not all suspects charged in connection with the Sept. 11 attacks would be tried before such a tribunal. Those caught in the U.S. would be tried in America, for example, whereas those found in countries from which it would be politically dangerous to extradite them to the United States could be made to stand trial before the tribunal. Stephen Saltzburg, a professor at George Washington University Law School and a member of the newly formed American Bar Association Task Force on Terrorism and the Law, insists there is no need for an international tribunal. “Many Americans would find an international tribunal [denies them] the opportunity to speak as a country about the most horrible act that anyone still living can remember,” Saltzburg says. He dismisses Slaughter’s justification for such a court, saying instead that his concern is not with the question of perceived credibility, but rather with whether the U.S. criminal justice system is sound. “It’s whether the country can apply its law to wrongdoers; whether the nation has the machinery or power base to get the job done,” he says. “If in fact there were war crimes perpetrated in most European countries, I would think they would want to bring their own prosecution.” Saltzburg also dismisses calls for a military tribunal. “It’s one thing to say we want to have a war on drugs and a war on terrorists. It’s another thing to declare a war against another state,” he says. “These are, after all, individuals who will be charged with offenses.” Unlike other terrorism cases brought in New York over the past decade, the current effort is not being led by the office of Mary Jo White, U.S. Attorney for the Southern District of New York. “It’s being primarily coordinated out of main justice,” says the federal prosecutor. “Traditionally, we don’t let justice tell us what to do, but with the Pentagon in this case, I think we’re being trumped.” White, a Clinton appointee, has presided over the successful prosecutions of conspirators in the 1993 truck bombing of the World Trade Center and of four associates of Osama bin Laden, who were convicted this year of the 1998 bombing of U.S. embassies in Kenya and Tanzania. The Bush administration has blamed the Sept. 11 attack on bin Laden and his terrorist network, al-Qaeda. In the embassy bombing case, bin Laden himself was also named as a defendant in a conspiracy to kill U.S. nationals in the simultaneous attacks on the embassies, which killed more than 200 and injured 4,500. Lawyers at White’s offices in lower Manhattan, just a few short blocks from the decimated World Trade Center, are not begrudging their supporting role in the current investigation, according to prosecutors in the office. One attorney there points out that the New York office has contributed several assistants to the current investigation, and that two Manhattan alumni are guiding its overall legal strategy. They include Patrick Fitzgerald, a former Assistant U.S. Attorney in Manhattan who obtained convictions for bin Laden’s four associates. Fitzgerald was nominated last month by President Bush to the post of U.S. Attorney for the Northern District of Illinois in Chicago. The other ex-New Yorker is Assistant Attorney General Michael Chertoff, the DOJ’s criminal division chief, who is also the former U.S. Attorney for the District of New Jersey and a long-time Assistant U.S. Attorney and Mafia prosecutor in New York. Thornburgh says he is not surprised that Ashcroft has not acceded to the New York office’s expertise in terrorism investigations, since this case carries with it a military and political dynamic. “Those two uses are unorthodox in a criminal investigation,” he notes, adding that there may be a “temptation that should be resisted” among federal law enforcement to skirt constitutional protections if they feel there’s little chance of their evidence having to undergo judicial scrutiny. Ashcroft has called on all 94 U.S. Attorneys’ Offices to create anti-terrorism task forces. “The biggest challenge in these international cases is to what extent do these folks have rights that we extend as a matter of course to American citizens,” says Thornburgh. “There’s no body of law to indicate … the parameters.” INVESTIGATING OVERSEAS The question of law enforcement tactics in international investigations arose in this year’s embassy bombing trial. In a Feb. 13 ruling, federal Judge Leonard B. Sand of the U.S. District Court for the Southern District of New York ruled that federal agents, when interrogating suspects abroad, are required to mention the availability of foreign defense lawyers. The ruling arose out of FBI tactics used in Kenya and Tanzania during their investigation of the bombings. Agents there told foreign suspects that they could not be guaranteed defense counsel because they were outside the U.S. Sand’s ruling raised questions among legal experts as to whether federal investigators, when working abroad, are now obligated to seek out foreign defense counsel if requested, and also whether such attorneys would be sufficiently knowledgeable of U.S. law to fulfill adequately a suspect’s right to counsel under the Sixth Amendment. New York defense lawyer Louis R. Aidala, who represented the driver of the bomb-laden van used in the 1993 World Trade Center case, warns that the FBI is indeed constrained overseas by Miranda v. Arizona. Though they may be able to use evidence independently obtained by foreign police, he says, Miranda rights apply if a suspect can show that foreign police were acting as agents of U.S. investigators. Aidala adds that statements proven to have been coerced would not be admissible in U.S. courts under any circumstance. Aidala’s client, EyadIsmoil, was convicted in 1998 and sentenced to 240 years in prison. Though Saltzburg says the FBI is likely to respect Sand’s ruling in the current investigation, he notes that it is unlikely the U.S. Supreme Court would uphold the precedent. For the most part, Saltzburg says, many constitutional protections do not extend beyond our borders. Thornburgh adds that, with the onset of a global war on terrorism, the procedures used by federal agents operating outside U.S. borders has become a “front-tier” issue for Justice Department officials. “If someone was taken down in the normal course of foreign law enforcement operation, they should be treated as any other criminal suspect,” he says. “But if they’re found in the course of a military operation, all the rules are off there. You don’t give people Fifth Amendment warnings if you’re gunning them down on the battlefield.”

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