Big terror trial shaped views of justice pick
By Adam Liptak
International Herald Tribune: September 20, 2007
On Jan. 17, 1996, after a nine-month terrorism trial and a rambling 100-minute lecture from a blind sheik found guilty of conspiring to wage war against the United States, Judge Michael Mukasey had had enough.
With a few terse, stern and prescient remarks, he sentenced the sheik, Omar Abdel Rahman, to life in prison. Judge Mukasey said he feared the plot could have produced devastation on "a scale unknown in this country since the Civil War" that would make the 1993 bombing of the World Trade Center, which had left six people dead, "almost insignificant by comparison."
Long before most Americans had given deep consideration to the terrorist threat from radical Islam or to whether the criminal justice system is the right forum for trying people accused of terrorism, Judge Mukasey received an intensive education on those topics.
The vivid lessons Judge Mukasey took away from the trial ? notably that the urgency of the threat requires tilting toward protecting national security even at some cost to civil liberties ? have echoed through his speeches and writings. Now, as President George W. Bush's choice for attorney general, he is poised to put those lessons into practice.
Abdel Rahman and nine other men were convicted of plotting a "day of terror" that would have included blowing up the United Nations Building, the George Washington Bridge and the Lincoln and Holland Tunnels.
The trial, which remains the longest and most complex international terrorism case ever presented in a United States court, involved almost the entire array of national security issues that Judge Mukasey would face if confirmed as the Bush administration's third attorney general. Those issues include the proper balance between security and liberty, between intelligence gathering and criminal prosecution, and between government secrecy and accountability.
In his writings, Judge Mukasey has made clear that, although the issues are difficult ones, he is inclined to favor security, intelligence and secrecy over the competing values.
Rules applicable in ordinary criminal cases, Judge Mukasey wrote last month in The Wall Street Journal, "do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means."
Although Judge Mukasey's handling of the trial received praise from the appeals court and from some ? but hardly all ” of the lawyers involved, his writings and public remarks show that the case left him shaken and deeply skeptical about the ability of civilian courts to try people accused of terrorism without compromising national security.
Mary Jo White, the United States attorney in New York at the time, said the trial was a master class for all concerned.
"I'm certain that his views were influenced by what he learned in that trial, both substantively and procedurally," White said, referring to the detailed information presented about the nation's enemies and the difficulty of addressing the threat in a criminal prosecution.
Ronald Kuby, a defense lawyer in the case, said he did not know if the trial shaped Judge Mukasey's thinking. But he said it certainly illuminated the judge's approach.
"He was violating the rights of Arabs before it was popular," Kuby said. "It was very much like trying a case with two prosecutors, one of whom was wearing a black robe and who was considerably more intelligent than the one hired for the job."
Judge Mukasey removed Kuby from the case over what the judge said were conflicts of interest. Other defense lawyers generally praised Judge Mukasey's handling of the case.
"He ran the tightest ship you ever saw," said Roger Stavis, another defense lawyer. "He's a very kind, generous man, but also a tough law-and-order guy."
But Stavis also wondered about whether a conventional trial was capable of addressing the charges in the case. "It doesn't fit," he said. "You cannot get at the problem in a discrete trial in an American courtroom."
The case was unusual from the start. It relied, for instance, on a Civil War-era seditious conspiracy statute that made it a crime to plot to levy war on the United States.
"The tools we had to charge terrorism were appallingly bad," said Andrew C. McCarthy, the lead prosecutor. Partly by happenstance, then, the case brought the metaphor of terrorism as a war into an American courtroom.
Judge Mukasey was concerned throughout about balancing the defendants' rights against national security. He ordered an array of potential evidence to be disclosed to the defense, for instance, but drew the line at information he said would needlessly compromise intelligence operations.
In his Wall Street Journal article, he wrote that terrorism prosecutions "risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized."
The risk, he wrote, is not theoretical. A list of unindicted co-conspirators provided to the defense in the 1995 trial, including Osama bin Laden, reached bin Laden in Khartoum, Sudan, within 10 days, Judge Mukasey wrote, "letting him know that his connection to that case had been discovered."
Judge Mukasey has complained bitterly about the porous nature of criminal proceedings in other settings, too.
When Kuby, the defense lawyer, applied for a security clearance for a later trial, Judge Mukasey met with a Federal Bureau of Investigation agent to argue against the idea, saying he was convinced that Kuby had leaked sealed documents to Newsday and The New York Times.
"Mukasey stated that he could not imagine anyone who would be less trustworthy with sensitive information than Kuby," a special agent's summary of the interview said. Kuby, who did not receive the clearance and denied leaking the documents, obtained the summary through a freedom of information request.
McCarthy, the prosecutor, said the problem of unauthorized disclosures was widespread and pernicious. "The FBI was leaking, too," he said.
In remarks at the Brooklyn Law School in 2000, Judge Mukasey was also critical of the news organizations for contacting former jurors after the nine-month trial. For the jurors' security, Judge Mukasey had allowed them to serve anonymously. "The court tries at all costs to keep that information secret," he said.
The case also gave Judge Mukasey early exposure to the Foreign Intelligence Surveillance Act, a 1978 law that required warrants from a secret court to monitor international communications involving people in the United States.
The 1995 trial involved surveillance of four defendants based on six warrants from the secret court. Judge Mukasey ordered that the surveillance tapes be disclosed, though he denied a defense request for documents related to the warrant applications.
"Disclosure of the conversations," the judge reasoned in a 1994 decision, "does not disclose the strategies, capabilities and techniques of those who gather information."
As if anticipating a debate that would arise after 9/11, he added that it should be perfectly permissible to use foreign intelligence information in criminal investigations and prosecutions. "There is no contradiction, indeed there is probably often a congruence, between foreign intelligence information and evidence of criminal wrongdoing," Judge Mukasey wrote in 1994.
His understanding of the law, at least in 2000, was imperfect. "If warrants are granted," he said, according to a transcript of his remarks published in The Journal of Law & Policy, "an appeal can be taken to an ad hoc court."
But FISA litigation is a one-sided affair. When applications are granted, the government has won and would have no reason to appeal. The proceedings are kept secret from the subjects of surveillance, who do not participate and have no way to appeal. Indeed, the FISA appeals court said in 2002 that it was hearing its first appeal ? filed by the government, after a government loss. It is not known to have heard any appeals since.
McCarthy, the lead prosecutor in the 1995 trial, said the lawyers, the jury and the judge had all emerged from it transformed.
Going in, he said, "there was a great impulse, certainly in the Justice Department but also in the courts, that we had best show to the world that we can take our own worst enemies and give them due process."
That view, McCarthy said, has turned out to be na