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- 2003 - November - 12th -

Balancing prosecution and protection

Richard Prior

The manner in which terrorist prisoners are being held and prepared for trial is producing nightmares for prosecutors and may create at least as many problems as they solve, according to a law professor at Duke University.

“The overall problem is we’ve unfortunately taken an ad hoc approach,” said Scott Silliman. “Some [prisoners] are in the federal courts; we’ve got some that we’re holding in military jails, where they were never charged and never had a lawyer. And we’ve got the folks in Guantanamo Bay.

“There’s no consistent pattern for our prosecution of terrorists.”

Silliman was invited by members of the Duke Club to speak during a luncheon at Coffman Coleman Andrews & Grogan.

He retired as an Air Force colonel in 1993 after 25 years of service. He supervised the deployment of all Air Force attorneys and paralegals during Operations Desert Shield/Desert Storm.

“This country is facing a threat that it’s never seen before,” Silliman told the two dozen members of his audience. “All of us need to be concerned with how we’re coping and how to get the best measure of protection while still keeping as many of our Constitutional rights intact as possible.”

Silliman raised several cases that threaten to put more elastic in the Constitution than Americans are accustomed to.

One involves Zacarias Moussaoui, who represents “a prosecutor’s worst nightmare.”

Moussaoui has admitted in court that he’s a member of al-Qaeda and that he was in this country to commit a terrorist act.

“The problem was,” said Silliman, “the terrorist act he admitted he was here to commit was not the one that occurred on Sept. 11, 2001.”

The trial judge granted Moussaoui’s request to represent

himself. The initial reaction

was he would probably “get buried under our legal system,” said Silliman.

“Unfortunately,” he added, “for many in our government, he has reaped the benefits of our due process, and he’s done a very good job of it.”

Moussaoui contends that three high-ranking members of al-Qaeda could testify that he was not involved in a conspiracy to commit the Sept. 11 attacks. All three, however, are being held prisoner “somewhere in the world where we don’t know,” said Silliman.

The trial judge asked for videotaped depositions. Attorney General John Ashcroft refused because the prisoners were being interrogated.

“Their location is classified; what they’re saying is highly classified,” said Silliman. “It’s a question of can the government proceed with a trial when it refuses to allow classified information to be used in that trial?

“What the government is basically saying is there needs to be a national security terrorism exception to the Sixth Amendment. That’s a pretty big issue. Once you start creating exceptions for terrorism, where does it go from there?”

Another case involves Yasser Hamdi, captured in Afghanistan after the same uprising that yielded John Walker Lindh. Hamdi was taken to Guantanamo Bay, where he disclosed that he was born in Shreveport, La., of Saudi parents.

He was taken to the Naval brig at Norfolk, Va., a year ago yet still has not been charged with a crime or given the opportunity to see a lawyer.

“The government has no intention of charging him with a crime,” said Silliman. “The theory being, we can keep these people behind bars for the duration of the war on terrorism.

“I tried to figure out when the war on terrorism will end. I’m not sure I have an answer yet.”

The case of Jose Padilla is perhaps the most interesting of all, he said.

Padilla, an American citizen, was arrested at Chicago’s O’Hare Airport for allegedly planning to detonate a radiological weapon. He was then taken to New York, where the grand juries were meeting, held on a material witness warrant.

The warrants, under a judge’s supervision, are good for about 30 days.

Padilla was held in New York for 29 and a half days when the Bush administration declared him an “unlawful combatant” and shipped him to Charleston, S.C.

“The problem with Jose Padilla’s case is, when he was being held by the Department of Justice, not the military, his lawyer met with him for 17 hours,” said Silliman. “Now that he is in Charleston, the government is saying, ‘You cannot see your lawyer. That will impede the investigation.’

“He’s not been charged with a crime, and he can’t see his lawyer.”

Favoritism has also become a problem for the Bush administration, he said.

Representatives of Britain and Australia have already gotten concessions from the attorney general and the Department of Defense for three of their citizens being held in Guantanamo Bay.

Egypt, Jordan and Pakistan took note and, last Thursday, asked for the same consideration.

“We very much need to keep Pakistan on our side; we very much need to keep Egypt on our side,” said Silliman. “So it becomes very political.

“If you start making different categories of folks for how you prosecute . . . is there any assurance of fair treatment among these people? Or does it depend on which country they come from?”

Present and future problems may also arise out of the handling of the 654 persons, of 40 different nationalities, who have been held at Guantanamo Bay for about 18 months, “and we still don’t know who some of them are.”

“What we’re doing . . . by holding individuals without ever charging them, even American citizens, I think, presents an even greater danger,” said Silliman. “We are creating a precedent that may come back to haunt us.

“I envision a situation in which, maybe one of your sons, or a daughter who is in the military, is kidnapped. In Yemen. And the theory goes something like this: your son or daughter is in the service of a country that uses cluster bombs. As we have. That’s a violation of international law.

“Therefore your son or daughter is an unlawful combatant, not deserving of any conventions, the Geneva Conventions or any other, under international law.

“We then . . . say, ‘No, that’s not correct. They are clearly prisoners of war, and you’re holding them unlawfully.’ They will say, ‘Look back 10 years, and what did you do at Guantanamo Bay?’”

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