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Civil Liberties -- Post-9/11

Attorney Andrew Cohen analyzes legal issues for CBS News and

In the post-9/11 age, in which two U.S. citizens have been jailed indefinitely and incommunicado and several hundred other men were rounded and held for weeks or months before their names were even released to the public, it's hard to get lathered up over the treatment given this past week to the so-called "Buffalo Six."

Each of the men has been charged with a serious crime -- providing material support to terrorist organizations -- during a moment in our history when terrorist "sleeper cells" probably represent the greatest practical danger to America's civilian population since Sherman's march to the sea. And yet each of the men had an attorney this week, during an infernally long detention hearing that was held in open court before a sympathetic judge and a gaggle of reporters.

Indeed, U.S. Magistrate Judge H. Kenneth Schroeder practically contorted himself to give the six U.S.-born Yemenis the benefit of almost every doubt, turning the relatively simple hearing into a mini-trial of sorts on the merits of the government's terror aid case against the men. As he said on the first day of the proceedings, both the world and the Muslim community in Lackawanna, New York were watching closely to see how he would react to what he called "a highly unusual case filled with emotions, filled with fear, filled with anxiety ... I am attempting to balance the rights of the people of the community to be safe and the rights of the defendants."

It's a delicate balance for the government, too. If the administration is going to be able to try to protect us from these alleged sleeper cells of terrorists-in-waiting, it is going to have to rely upon the "material aid" to terrorism statute enacted after the Oklahoma City bombing. The federal prohibition initially was designed especially to give the feds a weapon against people and organizations who supply guns and money to terrorists -- the Osama bin Ladens and al Qaedas of the world – but, thanks to its aggressive use and a key ruling this spring by a federal judge, it is turning out to be the government's catch-all law in the legal war on terror.

It's not a perfectly-worded law to cover the facts of these terror aid cases. But prosecutors figure if things ain't broke, they aren't worth fixing. The feds think this way because earlier this year, the material support law was used successfully against John Walker Lindh, the American Taliban. Lindh's judge, U.S. District Judge T.S. Ellis III, ruled in June that "material support" could include the provision of sweat equity without running afoul of the First Amendment's free association principles. If the men and women who ultimately judge the Buffalo Six rule likewise, the men very well could be found guilty of the crimes with which they have been charged. This is especially true if the men took any kind of training at any of those same terror camps Lindh frequented during the summer of 2001 -- regardless of what their state of mind may have been at the time.

If this legal strategy works in New York the way it did in Virginia in the Lindh case, look for prosecutors all over the country to use the "material support" law to try to neutralize people who allegedly fall into this somewhat nebulous category. Why nebulous? Because the Buffalo Six, like Lindh, may have been at the wrong place at the wrong time, dancing the wrong dance with the wrong people. But so far there is no proof that they either committed a crime of violence or were planning to. The defense in Buffalo says this raw fact means there can be no convictions under the law. And some civil liberties' groups say it means that the law is being unfairly applied to "pre-crime" actions on the part of a vulnerable minority during a climate of fear and suspicion.

But the government says, through its words and its deeds, that people who had the inclination and ability to travel to al Qaeda's camps in 2001 -- and who then didn't report their journeys after the terror attacks -- have no business complaining if prosecutors have figured out a way to call those actions a crime. And there really isn't any other law available in the government's arsenal that even arguably covers this sort of scenario. So if the two options are to over-extend the law's application or be precluded from holding and prosecuting training-camp attendees, the executive branch is going to roll the dice and hope the judicial branch goes along.

Now, you can argue, as the Buffalo defendants already have or will, that Judge Ellis' interpretation of the law is too broad; that the statute never was intended by Congress to include "training" or even a defendant's mere presence at a terror training camp. Ultimately, that's a legal position that may even prevail at the federal appellate level. But right now, Ellis' ruling in the Lindh case is the only recorded ruling on the specific point at issue in the case of the Buffalo Six. And, thus, is a ruling any other federal judge, including Magistrate Schroeder and his successor at trial, will have to get around to narrow the scope of the "material support" law.

Do federal trial judges disagree with each other about the scopes of statutes? Sure, all the time. Is a federal judge in New York obligated to follow his colleagues' ruling in Virginia? Absolutely not. Is Ellis' ruling going to be ignored in Buffalo? No way.

Will the Buffalo Six be released pending trial or not? I'm still betting on "not," despite the judge's apparent disdain for the government's position. Whether or not they ultimately are found guilty, their case is the best test yet of how far our existing laws go in protecting us from a potential serious, sinister threat to our security.

It's a threat -- sleeper cells -- that by its very nature won't give much tangible proof of its deadly intent or effect until it is too late, legally or practically. There are only two legal options, then, to combating the problem. Either federal judges will continue to go along with the government's hyper-broad reading of the existing material support law. Or our politicians will have to get together to figure out a creative new way to constitutionally proscribe this sort of conduct. So far, Option One seems to be working. But it would be nice to know government attorneys are working on Option Two as well.

By Andrew Cohen