- The Washington Times - Sunday, December 16, 2001

The carnage of September 11, 2001, was neither a crime nor an act of war. It was an illegal act of war intended to destroy our American society. As such, it is beyond the scope of our criminal laws.

Entering a country by stealth (sans military uniform) to destroy "life or property," states our Supreme Court, is an example of a belligerent who is an offender "against the law of war subject to trial and punishment by military tribunal." Therefore, those who decry military tribunals cannot prevail on Supreme Court precedent. They must argue policy. I supervised the U.S. Justice Department's terrorism unit in the mid-1980s, and faced the problems of investigating and prosecuting terrorism. I know the practical policy reasons that require the president to have the option to try these cases outside our criminal justice system.

The security requirements of a regular trial would overwhelm our federal law enforcement personnel capability and subject government trial participants and buildings to round-the-clock protection. Federal judge Michael Mukasey, who presided over the 1993 trial of Sheik Omar Abdel-Rahman charged with conspiring to blow up five New York City landmarks, is still under 24-hour armed protection, a condition akin to being a mobster on the witness protection program. The sentences of defendants convicted in New York City of the East African Embassies bombings were scheduled days after September 11. Coincidence?

When I was negotiating with the German government to extradite Mohammed Hamadi, responsible for the 1985 hijacking of TWA 847 and the murder of Navy Seal Robert Stethem, my husband Joseph diGenova was the D.C. U.S. Attorney who would try the case. So both of us were government operatives bringing a Middle Eastern terrorist to trial.

After we requested Hamadi's extradition, a U.S. marshal showed up at Joe's office asking our blood type and insisting we move from our cul-de-sac so 24-hour surveillance would be easier to maintain.

We had no problem with these requests because fighting terrorism was a cause to which we were dedicated. But when the marshal also asked for locations and blood types of our three children, my heart skipped a beat. They hadn't asked for this danger.

We escaped that emotional call when the German government refused to extradite and, instead, tried and convicted Hamadi. Yet, the scenario made me keenly aware that the need for round-the-clock protection from death threats involves not just the judge, the prosecutor and the witnesses; it encompasses the families of those trial participants. Even if we had enough federal law enforcement personnel to provide full-time security for all parties involved in terrorism trials (and we do not), why would we want to impose on our government servants a choice of a life of confinement or vulnerability to terrorism for doing their jobs?

And then there is the jury. Who wants to serve as a juror, deciding guilt knowing that Osama bin Laden, his lieutenants, and worldwide cells would hold us accountable? Ireland, long ago in its Offenses Against the State Act, gave up using jury trials for terrorism cases because its citizenry was too intimidated to serve.

A further security concern is protection for the courtrooms. Any building utilized would become a citadel with the lives of all workers, trial related or not, at risk. Who wants to live or work within a bomb's blast of a building housing a terrorist trial?

In cases requiring evidence from outside the United States, there are problems that could prevent all relevant evidence of guilt to be used. The only situation worse than not capturing any terrorists is capturing them, bringing them back to the United States for trial and having to release them because evidence of guilt was kept from the U.S. government or not admitted into evidence.

When I was at the Justice Department, we refused to request arrest or extradition of a terrorist unless and until we had evidence beyond a reasonable doubt and were certain of its admissibility in a federal trial. There is no such luxury during war where we round up combatants whose names or evidence against them will not be known until weeks or months after capture.

September 11, 2001, was not a bank robbery in Sheboygan. Few, if any, U.S. located witnesses or documents will be relevant. It was an international plot by foreigners mostly outside our borders. Evidence of guilt will be gathered by foreign governments, either by their intelligence agencies or police forces. Obtaining admissible evidence is difficult under both situations.

As a Justice Department official, I had information of a foreign intelligence service possessing a tape of a terrorist's involvement in an attack in which a U.S. citizen was a victim. We should have prosecuted the case.

However, under no circumstances would the intelligence agency give us the tape, the only form in which a U.S. court would allow a jury to hear the words on the tape. ("We'll give you a summary if you don't tell where it came from.") To provide us the tape would mean that the fact of wiretapping would be known, revealing to the terrorists the phones being monitored.

For this country, preventing a future attack was more important than prosecuting a perpetrator.

To all who claim we have a law for admitting such evidence, I assure you that the Grey Mail Act, designed for spy cases and leaks of classified information, works in only a handful of cases. Many times sources and methods cannot be sufficiently hidden. The government does not reveal when disclosures required by the Act result in declinations.

Evidence collected by a foreign police force presents another problem but with the same result: the probability of not being used at trial. U.S. courts do not use relevance and reliability as the only factors for admitting evidence. In criminal cases, the courts can exclude evidence, no matter how probative of guilt, if the police officer does not follow certain rules such as obtaining a proper search warrant or giving Miranda rights. Under U.S. law, "guilty" persons can go free if the constable blunders.

For example, a foreign police officer enters a known terrorist cell and finds credible strong evidence of guilt: diagrams of Dulles airport, notes describing the speed and angle necessary to demolish a structure, and bank records showing transactions with the hijackers named on the Pentagon plane.

However, U.S. law is unclear whether evidence is admissible that does not comply with U.S. constitutional standards. Some courts allow it, others do not.

In many countries, there would be no warrant signed by a judge finding probable cause to search. Congress rejected a law ensuring this type of foreign evidence could be used in terrorist trials. U.S. prosecution means risk of losing credible strong evidence of guilt because a foreign constable blundered, a result that could mean release for the accused terrorist.

A jury trial of a person charged with crimes associated with September 11 will not necessarily be fairer than a tribunal procedure. Both defendant and government are entitled to a fair trial. Any defense attorney, not just a good one, will take one nano second to argue there is no American city where the defendant could get a fair trial. If Timothy McVeigh's trial for bombing the Oklahoma federal building had to be moved to Denver because of local publicity and community outrage, where in America are those factors absent from a jury pool for the September 11 attacks?

On the other hand, the government could be deprived of a fair trial if the jury votes not guilty because it is so intimidated for fear of retaliation.

When deciding our options for response to September 11, we must not forget that, unlike ordinary crimes, our goal in war violations is not only to find the perpetrators. We must prevent another attack on our citizens.

In that regard, perhaps the most practical argument for the president to have the option of trying non-U.S. belligerents in a military tribunal is that he already has one: to kill them.

Victoria Toensing is a former deputy assistant attorney general, who supervised antiterrorism cases for the U.S. Justice Department, and is a founding partner of the law firm of diGenova & Toensing LLP.

Sign up for Daily Newsletters

Copyright © 2019 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide