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How do I explain this one to my students? The day after I led my first-year criminal law class in a “hypothetical” discussion of whether terrorists should be allowed a cultural defense, terror struck America. The death and destruction are not hypothetical. There are cruel realities to this incident. The reality is that law enforcement and prosecutors across our nation must tap their experts in terrorism law. Terrorist attacks are not new to the United States. Since the 1980s, there have been terrorist attacks across the nation, from the 1993 World Trade Center bombing to the Oklahoma City bombing to recent attempted bombings in Seattle and Los Angeles. There is no need to reinvent the wheel. U.S. Attorneys’ offices and federal investigative agencies will be the front line in the investigation of this case. Only federal authorities have the power to issue subpoenas nationwide. Only a network of the U.S. Attorneys and the FBI will be able to coordinate the flood of search warrant applications and agent interviews that will inevitably occur. SURMOUNTABLE CHALLENGE The federal prosecutors’ job is a challenging one, but not insurmountable. As prior cases have shown, terrorism is one kind of case in which prosecutors need not worry about jury nullification or judges rushing to suppress evidence. Prosecutors have a green light to be aggressive in their investigation techniques. Although they will undoubtedly try to work by the rules, the rules are somewhat different in terrorist cases. For example, under the 1978 Foreign Intelligence Surveillance Act, instead of submitting the usual Title III application for a wiretap, the government may obtain wiretap authorization from the specially constituted U.S. Foreign Surveillance Court. Although the primary purpose of surveillance under the act should be for “foreign intelligence reasons,” the law fully anticipates that information obtained will be used in arrests and prosecution. One can expect that information gathered through these warrants will play a vital role in the apprehension and prosecution of terrorism suspects. Prosecutors also know they will play by slightly different rules once their cases reach the court. For example, defense lawyers typically argue that lost evidence undermines the integrity of the prosecution’s case. In terrorist cases, the need to attend to emergency life-saving efforts is the highest priority and is likely to excuse the loss of on-site evidence not collected by investigators. Moreover, the recent discovery debacle in the McVeigh case may actually help prosecutors. FBIagents now realize how important it is to carefully inventory, preserve and present all evidence to the prosecutors. Targeting members of a particular ethnic group or religious sect will also not be a problem given the circumstances. It is not racial profiling when reliable information identifies a particular group as the likely perpetrators of terrorist acts of war. Prosecutors only need a nondiscriminatory motive to prosecute selectively. Terrorist acts of war undoubtedly satisfy this requirement. Additionally, if history is any guide, judges are likely to be more forgiving of alleged acts of perjury by overzealous law enforcement agents. As long as there is a firm belief that the right person is being convicted for the bombing, and prosecutors did not participate in the deception, mistakes by investigating agents are more likely to be forgiven. If the terrorists involved in the Sept. 11 incidents come from a religious or political sect that culturally sanctions allegedly seditious conduct, prosecutors also know from past decisions that expert testimony on such traditions will never make its way to the jury. Finally, prosecutors know that if they can convince a court that its evidence is classified, it may not need to be disclosed to the defense. Under the Classified Information Procedures Act, prosecutors are entitled to have the district court review any classified information in camera and with ex parte government memoranda before deciding whether the defendant’s need for the documents outweighs the government’s need for secrecy. It is hard to believe, given the magnitude of these crimes, that any defendant’s rights will outweigh ongoing security concerns. On the logistical front, prosecutors may need to reorder the priority of ongoing investigations. Any investigations of U.S. senators for alleged campaign violations or of pardoned super-rich fugitives for regulatorycrimes may take a back seat to the biggest domestic disaster in history. In hunting down these terrorists, prosecutors must cast the widest possible net. Anyone who knowingly helped the scheme succeed, even if he or she knew only a small part of the plan, is responsible for the massacre. Conspiracy, racketeering and accessory-after-the-fact charges, frequently criticized as being overly broad, are exactly the vehicles to use to squeeze small-fish suspects and apprehend their superiors. It would be wise for the administration to delay changing the leadership of some major U.S. Attorney’s offices. Experience is key when the “big” case hits. And this is the biggest of big cases. Prosecutors have the awesome responsibility of responding to the public’s cry for justice. When that day comes, their acts will be under intense scrutiny. The prosecutors, however, will have one key advantage on their side — America will be rooting for them to win. A CLOUD OF TEARS AND ANGER As for me personally, for the first time in my life I feel how powerless the law may be in a world of true evil. Don’t get me wrong — I still believe in the criminal justice system. As I teach my students, it isthe way a civilized world seeks retribution. But I also know we will never see the law the same again. I will always have a cloud of tearsand anger impeding my vision. I will always know that even with the best of prosecutors and the most dedicated of judges and law enforcement, justice for the worst criminals comes too little, too late. Laurie Levenson is a professor of law and William M. Rains Fellow at Loyola Law School in Los Angeles.

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