Christina M. Cerna on The Torture Papers: The Road to Abu Ghraib. Edited by Karen J. Greenberg and Joshua L. Dratel. Cambridge, MA: Cambridge University Press, 2005. 1249 pp.

A review of: The Torture Papers: The Road to Abu Ghraib. Edited by Karen J. Greenberg and Joshua L. Dratel. Cambridge, MA: Cambridge University Press, 2005. 1249 pp

Special Administrative Measures and the War on Terror: When do Extreme Pretrial Detention Measures Offend the Constitution?

Our criminal justice system is founded upon a belief that one is innocent until proven guilty. This belief is what foists the burden of proving a person’s guilt upon the government and belies a statutory presumption in favor of allowing a defendant to remain free pending trial at the federal level. Though there are certainly circumstances in which a federal magistrate judge may—and sometimes must—remand a defendant to jail pending trial, it is well-settled that pretrial detention itself inherently prejudices the quality of a person’s defense. In some cases, a defendant’s pretrial conditions become so onerous that they become punitive and even burden his or her constitutional rights, including the Fifth and Sixth Amendment rights to due process and the effective assistance of counsel, respectively. Special Administrative Measures (SAMs) consist of a variety of confinement conditions that the attorney general may impose on an individual defendant at his or her discretion. Their purpose is to severely restrict communication by defendants with the demonstrated capacity to endanger the public through their third-party contacts. Although Congress did not create SAMs with terrorists in mind, their use in terrorism cases is almost routine. This Note explores the constitutional implications of SAMs when they are imposed on terrorism defendants who are detained pending trial. Specifically, my interview with criminal defense attorney Joshua Dratel sheds critical light on the deleterious impact SAMs have on a defendant’s Fifth Amendment right to due process and Sixth Amendment right to the effective assistance of counsel

Special Administrative Measures and the War on Terror: When do Extreme Pretrial Detention Measures Offend the Constitution?

Our criminal justice system is founded upon a belief that one is innocent until proven guilty. This belief is what foists the burden of proving a person’s guilt upon the government and belies a statutory presumption in favor of allowing a defendant to remain free pending trial at the federal level. Though there are certainly circumstances in which a federal magistrate judge may—and sometimes must—remand a defendant to jail pending trial, it is well-settled that pretrial detention itself inherently prejudices the quality of a person’s defense. In some cases, a defendant’s pretrial conditions become so onerous that they become punitive and even burden his or her constitutional rights, including the Fifth and Sixth Amendment rights to due process and the effective assistance of counsel, respectively. Special Administrative Measures (SAMs) consist of a variety of confinement conditions that the attorney general may impose on an individual defendant at his or her discretion. Their purpose is to severely restrict communication by defendants with the demonstrated capacity to endanger the public through their third-party contacts. Although Congress did not create SAMs with terrorists in mind, their use in terrorism cases is almost routine. This Note explores the constitutional implications of SAMs when they are imposed on terrorism defendants who are detained pending trial. Specifically, my interview with criminal defense attorney Joshua Dratel sheds critical light on the deleterious impact SAMs have on a defendant’s Fifth Amendment right to due process and Sixth Amendment right to the effective assistance of counsel

Special Administrative Measures: An Example of Counterterror Excesses and Their Roots in U.S. Criminal Justice

This article examines the creation and implementation of pretrial Special Administrative Measures [SAMs], a version of pretrial solitary confinement now used most often to confine terror suspects in the federal criminal justice system. Through an in-depth archival study, this article brings attention to the importance of 20th-century criminal justice trends to the 21st-century response to the threat of terrorism, including an increasingly preventive focus and decreasing judicial checks on executive action. The findings suggest that practices believed to be excessive responses to the threat of terrorism are in fact a natural outgrowth of late modern criminal justice

The Classified Information Procedures Act in the Age of Terrorism: Remodeling CIPA in an Offense-Specific Manner

The Classified Information Procedures Act (CIPA) sets the balancing point between the government’s interest in preventing disclosure of classified information with a criminal defendant’s right to exculpatory material. Although CIPA was originally drafted with espionage cases in mind, the statute has become more commonly associated with terrorism prosecutions. This contextual shift has disrupted CIPA’s interest-balancing formulation by altering the governmental interests at stake. CIPA’s discovery burdens on the defendant are ordinarily constitutionally justified by the strong countervailing state interest in preserving vital national-security information. This concern is less salient with terrorism defendants, who are unlikely to possess state secrets. Accordingly, those defendants may require further reciprocity in discovery procedures to keep the statute within constitutional parameters. This Note examines the ill effects of CIPA’s contextual shift and proposes a set of amendments to alleviate those concerns. Chiefly, this Note suggests an offense-specific CIPA, whereby the procedural mechanisms of the statute are tailored to the offense charged. The three core recommendations of this Note are (1) inclusion of defense counsel in the discovery process and clearer standards to govern discoverability; (2) a limited and qualified declassification requirement in select Foreign Intelligence Surveillance Act cases; and (3) bifurcation of admissibility hearings

Colin Powell, Torture and Terror

This paper will address evidence linking the former Secretary of State, General Colin Powell, to the hotly-debated torture program of the George W. Bush (GWB) administration. The evidence in this paper suggests that the policies and practices of torture in the War on Terror were planned and authorized by General Powell and other senior officials in the GWB administration