The legal war on terror has so many fronts that it's often difficult to remember how one battle affects the next. This week there were two important developments that resulted directly from two other recent developments. You can tell by these drip-drop events and issues that terrorism law is marching on, from one point to the next, slowly developing into doctrine. The only problem is: we don't yet know what that doctrine will look like.
Here's how the legal cause-and-effect works in the real world. Last week, the 4th U.S. Circuit Court of Appeals in Virginia issued a ruling that upheld the government's right to designate certain citizens "as enemy combatants" and hold them, indefinitely, without charges and the ability to see their lawyer. Part of the basis for the court's decision was an affidavit by a military bureaucrat indicating that Yaser Esam Hamdi, an American citizen captured early last year in Afghanistan, was a good intelligence resource for the government whose value would be diminished if he were given access to his own lawyers. The 4th Circuit's ruling dooms Hamdi to legal limbo unless and until the appeals court reconsiders its ruling or the Supreme Court reverses it.
But the Hamdi ruling already is affecting, in immediate and practical ways, the fate of Jose Padilla, the "other" American citizen designated an enemy combatant by President Bush. Padilla was captured in Chicago and initially labeled a "dirty bomb" suspect. He was taken out of civilian custody (where he had been given a lawyer) and transferred to the brig. His case is a few procedural steps behind the Hamdi case, mostly because Hamdi was captured half a year or so before Padilla was. Padilla's lawyer is pushing ahead on behalf of her client and a federal judge in New York already has ordered the government to make Padilla available to counsel.
Here's the rub. Just a day or two after the government won its big court victory in the Hamdi case, but months and months after they first began wrangling in court in the Padilla case, federal lawyers for the first time argued that Padilla shouldn't be allowed to see his lawyers because those visits would compromise the government's interrogation of Padilla. Noticing a pattern here? Last Wednesday, the government got the green-light from a federal appeals court for this specific rationale for isolating "citizen combatants." And less than two days later, last Thursday evening, federal lawyers had used it in the Padilla case to try to preclude him from seeing his lawyers.
Why mess with a winning recipe, the government figures. What's good for a bunch of federal judges in Virginia ought to be good enough for a bunch of federal judges in New York.
We'll see. U.S. District Court Judge Michael B. Mukasey, the man presently presiding over Padilla's fate, wasn't exactly pleased by the government's new argument. But the fact that the feds would so quickly implement the lesson of the Hamdi case into the Padilla fight is a great way to explain how quickly the cause, Hamdi, becomes the effect, Padilla, when it comes to the legal war on terror.
The other cause-and-effect story of the week revolves around the African Embassy bombing trial and a front-page Sunday New York Times piece a few weeks ago that chronicled the tribulations of the jurors in that case. The Times' Benjamin Weiser wrote on January 5th about how the jurors became aware during the trial that the four men (now convicted and sentenced to life in prison) were in shackles. Weiser also discovered that at least one juror had used the Internet to look up information during the trial and that at least one other juror may have deceived the court and the lawyers about his views on the death penalty.
The result? Predictably, lawyers for the four men have asked the 2nd Circuit U.S. Court of Appeals to halt the appellate process in its tracks so that the jurors, who remained anonymous during the trial, could be questioned further about the reported irregularities.
Will this particular appeals issue be successful? Probably not. I can't see any judge in the country overturning the convictions of any terrorist right now. But I also can't see any judge taking lightly the problems identified first by Weiser and then by the lawyers for those men. Will those jurors be hauled back into court and questioned under oath about what they did or did not do? Will Weiser be asked to share his notes? And how will the solution of this problem affect the justice system's ability to rely upon prospective jurors (say, in the Zacarias Moussaoui trial coming up in June) in future terror trials?
The cause here is Weiser's good reporting. The effect is a new round of legal fighting that could delay the final result in this case for years. The end result is unknowable at this time.
Come to think of it, you can say that last part about an awful lot of things relating to the terrorism and the government's legal response to it.
By Andrew Cohen