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For the past six months, prosecutors in terrorism cases have endured one slap after another: a federal judge who lectured them on the Constitution and ordered the release of a man with suspected ties to the Sept. 11 hijackers; another who squarely rejected the government’s right to control an alleged terrorist’s access to his lawyers; and a defendant who used an open courtroom as a soapbox to spout anti-American invective. The administration, it seems, has had enough. The government’s decision last week to shunt suspected al-Qaida operative and U.S. citizen Jose Padilla into the custody of the Department of Defense and out of the criminal justice system is seen by many as a direct reaction to the challenges of fighting the war on terror in U.S. courtrooms. By avoiding the criminal justice system, the government won’t have defense lawyers or judges looking over its shoulder, making it easier to detain suspects and squeeze them for information about other possible terrorists or operations. The legality of the move has been challenged, but given the headaches and uncertain payoffs of prosecuting those captured in the war on terror, the decision to circumvent the courts was hardly surprising. “They’re terrified the federal courts have forgotten September 11 and are going to screw this whole thing up,” says one person with ties to the Justice Department. But the administration may not be able to avert judges forever. Lawyers for two detained, but uncharged, U.S. citizens — Padilla and the so-called Cajun Taliban, Yaser Esam Hamdi — have asked federal courts to order the immediate release of the men, or at least allow them to meet with their lawyers. U.S. District Judge Richard Doumar of the Eastern District of Virginia ruled last month that Hamdi had a right to meet with his attorneys. That decision has been stayed pending the government’s appeal in the 4th U.S. Circuit Court of Appeals. Chief Judge Michael Mukasey of the Southern District of New York has given prosecutors until June 21 to reply to the Padilla petition or ask for a change in venue. A Justice Department official says the government’s treatment of the two men is legitimate, legal, and entirely appropriate. “In this new type of war, in which combatants are unidentified and bent on attacking innocent civilians, we have to look at each legal action through the prism of national security,” the official says. “The Constitution and federal law provide us with options … [and give] the president, as commander in chief, this authority, particularly during wartime.” The stakes couldn’t be higher, says former Attorney General William Barr: “We are going to see if the judiciary will undermine our society’s ability to resist foreign aggression,” he says. The final decision most likely will be made by the Supreme Court, which, Barr and other close observers predict, “will back the president.” Barr, who is now general counsel for Verizon Communications, defends holding Padilla and Hamdi as enemy combatants. The two men, he says, are not criminals under arrest; they are captured members of an external group that is “waging war” against the country. “It’s completely incongruous to be trying to apply domestic criminal law and procedures to an organized force attacking the United States.” Civil liberties watchdogs say the government’s decision to deny Padilla, Hamdi, and others who may follow access to the courts is unconscionable, as well as unconstitutional. “Every person in the United States has a right not to be locked up absent a fair process in which the government makes its case and the defendant has an opportunity to defend himself,” says professor David Cole of Georgetown University Law Center. “It suggests that the government, when it lacks probable cause to arrest somebody, will invoke this nebulous power to pull any U.S. citizen off the street at the president’s say-so without any hearing, without any access to a lawyer, without access to family, and without any charges.” LESSONS LEARNED As the prosecutions of American Taliban fighter John Walker Lindh, alleged 20th hijacker Zacarias Moussaoui, and alleged “shoe bomber” Richard Reid demonstrate, the methods of war do not easily fit within the rules of criminal procedure. Lindh’s defense team, for example, has filed a raft of pleadings challenging the government’s sources and methods of obtaining information against the 21-year-old Californian. At a recent hearing in Lindh’s case, U.S. District Judge T.S. Ellis III of the Eastern District of Virginia noted that prosecuting Lindh could require the government to release information it is loath to reveal. Last Thursday, Lindh’s team moved to suppress statements he made in Afghanistan while in U.S. custody, claiming they were taken in violation of his Fifth Amendment right against self-incrimination. In all three cases, one former Justice Department official says, “much of the evidence is highly sensitive and probably extracted through interrogation, sometimes overseas.” The level of sensitivity, as well as the intensity of interrogation, could render some of it unusable in court, he says. Indeed, a reason government officials gave for moving Padilla out of the court system is that the evidence they claim proves he was plotting to detonate a radioactive bomb in the United States is too sensitive to reveal. More important, the government’s interest lies in the information Padilla and other detainees might provide about other al-Qaida members, not in building cases against them. As Federal Bureau of Investigation chief Robert Mueller III put it at a June 10 news conference, “Our number one priority is to defend the American people from future attacks. To do that, we must root out those who are planning such attacks. … [W]hen we have them in our control, we must be able to question them.” Before a trial, of course, defendants are not in the administration’s control; they are in the custody of the court. Veteran prosecutors and interrogators say that extracting useful information is much more difficult when done in the context of a pending court case, with defense counsel present and a judge overseeing the proceedings. When the only person a detainee may talk to is his interrogator, the conversations tend to be more fruitful, they say. “That’s one reason they’re doing this enemy combatant thing,” says a former prosecutor. “They don’t want lawyers involved, because you’re going to get nothing.” THE MOUSSAOUI FACTOR The case against Zacarias Moussaoui may be the most powerful catalyst for the government’s decision to avoid putting alleged terrorists on trial in open court. On June 13, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia found Moussaoui mentally competent to represent himself against capital charges. She termed his decision to defend himself “unwise, but rational.” At an earlier hearing, Moussaoui said he prayed for the destruction of Israel and the United States and for a return of Muslim rule to Spain. His comments made headlines throughout the world. “In many ways, this is the ultimate nightmare for the prosecution and the court and for the attorneys who will be [Moussaoui's] advisers,” says former Deputy Attorney General Eric Holder Jr. “It’s a nightmare for everybody except for Moussaoui, who will now have an opportunity to convert this trial into a propaganda platform.” There’s no question the administration is in a tough spot. On the one hand, it has in custody suspected terrorists that it doesn’t want to let go. But the government cannot hold them as material witnesses for grand jury investigations — a federal judge nixed that approach in April. And now the ability to hold them as war captives is being challenged. “In the absence of some compelling reason as to why someone should be detained, the government is likely to lose,” says Holder. “And you don’t want to have bad appellate law that some defense lawyer is going to be able to cite. You don’t want to lose momentum in this battle.” The choices the government is making are hard, and of tremendous consequence, adds Robert Turner, associate director of the Center for National Security Law at the University of Virginia School of Law. “If we gamble wrong on this,” Turner says, “an awful lot of people are going to lose their lives.”

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