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The attacks on the World Trade Center and the Pentagon on Sept. 11, 2001, prompted U.S. Attorney General John Ashcroft to expand the brief of U.S. attorneys throughout the nation: In addition to investigating, solving and prosecuting crimes of terror, their jobs would henceforth include preventing future terrorist acts. The attorney general’s new “paradigm of prevention” has led prosecutors to use every tool at their disposal to investigate, observe and detain potential terrorists before they strike. Those efforts have in turn been met with forceful response from the defense bar concerned with violations of civil liberties and the Constitution. Caught in the middle are the federal judges, who are called upon to determine the scope of the executive branch’s power to use surveillance and detain suspicious individuals, and to balance that with protecting civil liberties. Several cases now pending in the Southern District of New York and the 2nd U.S. Circuit Court of Appeals illustrate this difficult balancing act. In some of the cases, access to classified information is at issue. Three cases are front and center: the prosecution of attorney Lynne Stewart and two others for allegedly providing material support for terrorism by assisting her imprisoned client Sheik Omar Abdel Rahman; the detention of alleged “dirty bomber” Jose Padilla as an enemy combatant; and the government’s appeal from a Southern District judge’s ruling that material witnesses cannot be detained to secure their testimony before a grand jury. “The government is looking to use every legal authority that it can create and describe to permit this so-called paradigm of prevention,” said Professor William C. Banks of Syracuse University School of Law. “For a judge it is foreboding in the sense that they are often asked to make decisions about the existence and scope of the government’s authority without they themselves having very much information, much less giving the defendant that information.” In the Stewart case, Southern District of New York Judge John G. Koeltl is weighing a motion to dismiss that asks him to find that the statute forbidding material support for terrorists is unconstitutionally vague and violates the First Amendment, and that the government violated procedures under the Foreign Intelligence Surveillance Act when it monitored prison conversations between Stewart and Abdel Rahman. Defense attorney Michael Tigar is also asking the court to rule that Stewart’s free speech rights are being violated because she is facing prosecution for passing a message to Abdel Rahman’s followers in the Islamic Group, a government-designated terror organization. Later this year, the 2nd Circuit will hear oral arguments on the detention of Padilla, who was arrested as a material witness in the terror probe and then transferred into military custody over a year ago. The appeal concerns a decision by Southern District Chief Judge Michael B. Mukasey, who ruled the government must present “some evidence” supporting President George W. Bush’s decision to detain Padilla, and that defense lawyers must be allowed to visit Padilla to help him present information to the judge for consideration in his habeas corpus petition. The circuit also is weighing Judge Shira Scheindlin’s ruling that holding material witnesses until their testimony can be secured before a grand jury is illegal. If allowed to stand, the ruling in the case of Osama Awadallah, who allegedly lied to a grand jury about knowing one of the Sept. 11 hijackers, would prevent the government from using what officials consider an effective weapon in terror investigations. Southern District U.S. Attorney James B. Comey argued the material witness case himself on April 10 before a three-judge 2nd Circuit panel, including Judges Chester J. Straub, Dennis Jacobs and Gregory W. Carman, chief judge of the U.S. Court of International Trade, sitting by designation. Comey was not alone in arguing that the grand jury is a “criminal proceeding” within the meaning of the material witness statute, 18 U.S.C. � 3144. On July 11, 2002, three months after Scheindlin issued her ruling, Chief Judge Mukasey delivered an opinion directly contrary, finding “no constitutional impediment” to the detention of material witnesses for grand jury purposes in In Re The Application of the United States for a Material Witness Warrant. HIGH STAKES The three cases illustrate the tremendous pressure facing investigators, and particularly prosecutors, to stop al-Qaida and other terror groups before they can act. And each case is an example of the government working to the utmost of its authority under the Constitution and existing laws. Challenges by defense lawyers put pressure on federal judges, who are well aware that fighting a war against a stateless enemy in an era of instant communication leaves the executive branch with a very thin margin for error. “This is exactly the problem judges confront in settings like this — the stakes are higher on both sides of the equation,” said professor Burt Neuborne of New York University School of Law. “By forcing compliance with traditional values you may do something that results in a terrorist act, but the consequence of not doing something could lead to massive violations of liberty.” Professors Neuborne and Banks and other scholars say the cases have another thing in common: the government’s plea for secrecy to prevent the compromise of intelligence sources and the integrity of ongoing investigations. This has led the government to argue that some information should be kept not just from defense lawyers but also from judges. Access to classified information is one issue in the case of Padilla, who is one of only three publicly declared enemy combatants being held in a military facility by order of President Bush. Of the three, Padilla is the only U.S. citizen who was captured inside the United States. After first arguing the president’s designation was sufficient to hold Padilla outside the civil justice system, the government relented and gave Judge Mukasey a copy of a Defense Department official’s declaration outlining the reasons supporting the detention. Much of that declaration, the government continues to argue, should be kept from defense lawyers Donna Newman and Andrew Patel, and both lawyers should be kept away from their client to protect the integrity of his interrogation at a Naval facility in South Carolina, the government contends. While 2nd Circuit judges are being asked to decide just how much deference should be given to the executive branch in its decision to detain an enemy combatant, their task in the Awadallah case appears on the surface to be much simpler: an exercise in statutory construction on the material witness statute. In the Awadallah case, Judges Straub, Jacobs and Carman are being asked to determine whether a device customarily used to secure a witness’s testimony at trial, often in organized crime cases where witnesses have been known to disappear, is being properly used for grand jury testimony. But the stakes are high in this case as well. When Comey argued before the 2nd Circuit in April, he stressed that federal agents were wrongly criticized by Judge Scheindlin for their questioning of Awadallah before his arrest as a material witness. Those agents, Comey said, were focused on nothing but “stopping a second wave of attacks.” The appeals panel raised the possibility during arguments that the court might be able to decide the case without addressing the applicability of material witness arrests to grand jury proceedings, and observers say the circuit will think long and hard before it considers removing the material witness statute from the government’s arsenal. But Diana Parker of the New York Council of Defense Lawyers said, “Both law enforcement and litigants in this circuit need to know who is right. This court should give direction to district courts in this circuit on whether or not someone will be incarcerated for days or weeks or months — or not at all.” Access to classified information is also an issue in the Stewart matter, where Judge Koeltl is considering Tigar’s argument that the federal statute criminalizing the provision of material support and resources to terror groups, 18 U.S.C. � 2339B, is unconstitutional because it leaves the government room to prosecute people for actions without showing actual intent to aid in the planning or execution of an act of violence. In addition to arguing that the government exceeded its wiretapping authority under the Foreign Intelligence Surveillance Act, 50 U.S.C. �� 1801-11, Tigar is also framing the prosecution as an unprecedented attack on the attorney-client privilege and the right of attorneys to freely advocate for their clients. He charges that the Special Administrative Measures (SAMs) imposed to limit Sheik Abdel Rahman’s right to communicate, as well as an attorney affirmation signed by Stewart promising to abide by the SAMs, are unconstitutional. Banks said the Stewart case will be watched closely because there are several cases around the country where the breadth of the statute is at issue, and Congress is currently weighing a proposal to expand the definition of “material support.” The Stewart case stands out, Banks said, because “most of those who are accused under this count have been copping pleas because they are scared to death.” Another issue in the Stewart case is her claim that she had an implied immunity agreement with former Southern District prosecutor Patrick Fitzgerald — embodied in an amended affirmation she signed, with the aid of her own lawyer, after Fitzgerald allegedly warned her that further public dissemination of Abdel Rahman’s statements might result in Stewart being barred from seeing her client. This claim requires Judge Koeltl to consider both the defense attack on the Special Administrative Measures in light of deference given the Bureau of Prisons in classifying prisoners and restricting their activity, and the limits to the attorney-client privilege and attorney advocacy. The judge has already decided one dispute concerning the privilege, finding that defense attorney Kenneth Paul and his client, Stewart co-defendant Ahmed Abdel Sattar, were not entitled to a guarantee that prison-house conversations might be monitored by the government under FISA or a regular warrant under Title III. Paul and Tigar had argued that effective assistance of counsel was impossible without the guarantee. Banks said there are two ways to look at the task facing judges who must consider the demands of the executive branch in dangerous times and the limits on its authority imposed by the Constitution. Noting that judges are well aware that any decision tying the hands of the executive branch “could lead to something horrible happening,” he said, they also know that the “paradigm of prevention is not law.” The underlying law “in a lot of these cases like Stewart and Padilla is the United States Constitution,” he said. “So another way for them to look at these cases is that it’s just another day on the job,” Banks said. “Judges may be in a better position in this circuit to look at these cases because of the passage of time and they are very experienced at working their way through the thicket.” Focusing particularly on the enemy combatant and material witness issues, Neuborne said he is concerned since “all of these things hold the potential for abuse because they tend to take place outside the regular channels of law enforcement and outside the scrutiny that we depend on from Article III judges.” As for the judges, he added, “Their hardest task is in times like now, in times of social stress.”

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