Leiken, Jonathan

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Leaving Wonderland: Distinguishing Terrorism from Other Types of Crime

Case Western Reserve University School of Law

Case Western Reserve Journal ofInternational LawVolume 36 | Issue 22004Leaving Wonderland: Distinguishing Terrorismfrom Other Types of CrimeJonathan LeikenFollow this and additional works at: https://scholarlycommons.law.case.edu/jilPart of the International Law CommonsThis Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons.It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western ReserveUniversity School of Law Scholarly Commons.Recommended CitationJonathan Leiken, Leaving Wonderland: Distinguishing Terrorism from Other Types of Crime, 36 Case W. Res. J. Int'l L. 501 (2004)Available at: https://scholarlycommons.law.case.edu/jil/vol36/iss2/16LEAVING WONDERLAND:DISTINGUISHING TERRORISM FROM OTHER TYPES OF CRIME*Jonathan Leikent"Let the jury consider their verdict, "the King said, for about the twentieth timethat day."No, no!" said the Queen. "Sentence first - verdict afterwards.""Stuff and nonsense!" said Alice loudly. "The idea of having the sentence first!"Lewis Carroll, Alice's Adventures in WonderlandI have never felt more like Alice, as she witnessed the backwards trialof the Knave of Hearts for stealing the Queen's tarts, than I did during theopening moments of jury selection of my very first trial as a federalprosecutor. It was July of 2002, less than a year after the terrorist attacks ofSeptember 11, 2001. There I stood, waiting to participate in our Americancriminal trial process for the very first time -- a process which I had studiedand admired for years -- when I was confronted with a problem that, for amoment, undermined my faith and confidence in the entire system.One of the fundamental principles of our American criminal justicesystem is that citizens will participate in the process as trial jurors, and thatthey will do so willingly and with a commitment to being impartial arbitersof the facts based upon the evidence presented to them. What I witnessedduring jury selection of my first trial was a significant number of citizens inthe jury pool who showed no such commitment. Indeed, some of thesepotential jurors showed a Queen of Hearts-like willingness to skip thedeliberations altogether and to convict the defendant of wrongdoing withwhich he was not even charged, terrorism, based upon the only two thingsthat the jury pool then knew about him: his name and what he looked like.The defendant's name was Usama Sadik Ahmed Abdel Whab. Helooked like what he was: an Arabic male in his mid-twenties.* Presented at the War Crimes Research Symposium: "Terrorism on Trial" at CaseWestern Reserve University School of Law, sponsored by the Frederick K. Cox InternationalLaw Center, on Friday, October 8, 2004.t Jonathan Leiken, a former Assistant United States Attorney in the Southern District ofNew York, is Adjunct Assistant Professor of Law at Case Western Reserve University LawSchool, where he teaches courses in Counterterrorism Law and Complex FederalInvestigations and Prosecutions. Mr. Leiken is also a civil litigator and white collar criminaldefense attorney with Squire, Sanders & Dempsey LLP in Cleveland, Ohio.CASE W. RES. J. INT'L L.The judge specifically advised the jury pool -- 35 plus citizens fillingall of the rows of her courtroom -- that the defendant was charged with twocrimes and two crimes only: passport fraud and providing a false statementto a federal agent. The judge emphasized repeatedly that there were noother charges in the case. After so advising the jury pool, Judge McMahonasked (as the judge always does at this point in the trial) the standard,general preliminary question: whether any of the potential jurors felt thatthey could not be fair and impartial if they were selected to sit on the jury.An astounding number of hands shot up.This was my first trial, and so I had no other trials with which tocompare this immediate opting-out by so many members of the jury pool.Nevertheless, I found it astounding that such a large number would raisetheir hand in response to this question. How could these people alreadyknow, based on the limited information given to them, that they could not befair and impartial in this trial? Now that I have tried a number of othercriminal cases, I know that my intuitions were correct: very few, if any,potential jurors typically raise their hands when asked this preliminary,general question regarding their ability to be impartial in the trial.One by one, the judge questioned these people as to their assertedincompetency to serve as impartial jurors. One by one, these citizens madestatements revealing that they believed that the case had something to dowith terrorism and the "war on terror."I recall one woman saying "I just couldn't..." as she eyed the defendantaccusingly. A number of other potential jurors talked about how they hadlost loved ones on 9/11. Others expressed fear of Whab. Others criticizedthe Government for what they believed to be racial profiling after 9/11.One by one, Judge McMahon dismissed each of these citizens from the jurypool.Hanging in the courtroom that day was a palpable sense of distrust inthe system: these citizens seemed to believe that their Government was nottelling them the whole story about this man and this trial. No matter whatthe judge said to them, no matter how carefully she instructed them, theyrefused to accept that a criminal prosecution of a young Arabic male in Julyof 2002 was unconnected to terrorism. My gut reaction as a new prosecutorembarking upon his first trial was to feel incredibly deflated at their lack offaith in the system, in their Government, and in me as the Government'srepresentative. I wondered how our justice system, built upon the notionthat citizens will rise to the call to serve as arbiters of the facts, couldfunction in an environment of such distrust.I was gratified to learn that the views expressed by this group ofpotential jurors did not infect the entire panel. There were ultimately morethan enough fair-minded citizens in the venire who embraced their duty asjurors.[Vol. 36:501LEAVING WONDERLANDNevertheless, it took us an entire eight-hour trial day to select a jury fora very straightforward, short trial. Indeed, the presentation of evidence inthe case took no longer than jury selection: one day. The jurors that wereselected fulfilled their duties admirably: they listened carefully to all of theevidence and deliberated to a unanimous verdict. Ultimately, Whab wasconvicted on all counts of the Indictment.'As lead trial counsel and the United States Government's chiefrepresentative on the Whab case, I can say quite candidly that there were noterrorism-related, hidden strategic reasons for charging Whab with the twocrimes of passport fraud and lying to a federal agent. This was a simpleprosecution, not unlike the hundreds of relatively simple cases that Ihandled during my first year as a federal prosecutor. Whab was chargedwith the crimes in the indictment for the sole reason that Whab, in fact,committed those crimes. But it stuck in my mind -- the way that so manypotential jurors refused to participate in the case.My original reaction to the many citizens who opted out of the Whabtrial was to condemn them for what I perceived as their failures as citizens:for failing to fulfill their civic duty to participate as fair and impartial jurorsin determining the facts in a criminal case. Over time, however, I havecome to understand the problem and the solution somewhat differently, andit has everything to do with terrorism.Here in America, our understanding of terrorism has been slow todevelop -- much slower than in Israel, where domestic terrorism inparticular has been rampant for decades. It was not until after September11, 2001 that we as a nation began to see terrorism for what it is: a differentanimal than other kinds of crime. Most criminal behavior involves anindividual or group of individuals working to cheat the system. Terrorism -- politically inspired violence directed against innocent civilians -- is abrand of deadly, psychological warfare that has as its goal to undermine andeventually overthrow our entire system, our political, economic and socialinstitutions, and our entire way of life.Because we were slow in understanding precisely what terrorism is andhow it differs from other types of crime, there has been doubt and suspicionabout the readiness of our existing legal procedures in America to deal withthe terrorist threat. In particular, there has been doubt and suspicion aboutour criminal justice system and its ability to deal with terrorism: that is, itsability to provide due process of law to those individuals accused of beingterrorists while protecting the nation against future acts of terrorism.1 Whab's conviction was upheld on appeal by the U.S. Court of Appeals for theSecond Circuit. United States v. Usama Whab, 355 F.3d 155 (2d Cir. 2004). TheSupreme Court denied certiorari on April 19, 2004. Whab v. United States, 72U.S.L.W. 3658 (U.S. Apr. 19, 2004).2004]CASE W. RES. J. INT'L L.Consider the evolution of how and where our nation has charged andtried suspected terrorists. In the 1990s, terrorism cases were handled in ourcourts as a brand of serious criminal behavior, as seen in highly publicizedand successful criminal prosecutions in the Southern District of New York:the 1993 World Trade Center bombing trial and the embassy bombingstrial. After September 11, the public was told that the alleged 2 0th hijacker,Zacarias Moussaoui, would be tried in federal district court in Virginia, butthe prosecution stalled due to the Government's concerns about revealing tothe defendant information that it deemed vital to national security. Now,the public is told that "enemy combatants" are being held and tried by themilitary in Guantanamo Bay, Cuba.It is not hard to see why the public would be confused about how andwhere our Government will charge and try terrorists. The public is left towonder whether the criminal trial process -- the one that they were taughtabout in school; the one that they know from their personal experiences andfrom television, newspapers, movies and books -- is equipped to deal withthe national security threat presented by terrorism. The public is left towonder whether the Government feels compelled by the perceivedlimitations of the system to cut comers in bringing nominal criminalprosecutions that are, in truth, secret counterterrorism measures againstsuspected terrorists. The public is left to wonder whether they, when calledto serve as jurors in a criminal trial, are secretly being asked to decide aquestion of national security: a question dealing not with past events butwith acts that have not yet occurred. The public is left to wonder, as somany potential jurors wondered in Whab, whether they are being told thewhole story.Forgive my pun, but we must leave Wonderland. Our criminal justicesystem cannot work unless the public has complete confidence in itsintegrity. We must cleanse the system, therefore, of cases that presentissues that are beyond the scope of the criminal trial process -- cases thatdeal with the threat to national security posed by terrorism. The publicmust understand and trust that the criminal trial process will deal withspecific enumerated crimes, and nothing more; that they will not be asked,as jurors, to decide an issue of national security.We must create a system where questions of national security andaccusations of terrorist activity are handled separately but within theframework of the Constitution. The system should provide due process tothose accused of terrorist acts: where judges participate and review thedecisions of the executive branch and the military. We must dedicateourselves to defining the contours of this system.Case Western Reserve University Law School has created aCounterterrorism Lab in which law students are grappling with theseprecise questions. It is my privilege to co-teach this lab with Visiting[Vol. 36:501LEAVING WONDERLANDProfessor Amos Guiora, a former military judge in Israel who haspersonally presided over numerous terrorism trials. Each of the lawstudents in the lab is assigned a particular potential forum for charging andtrying suspected terrorists, among them: our federal courts; a court withinthe jurisdiction of the United Nations; the Foreign Intelligence Surveillancecourt; military tribunals; and an international criminal court. Each week,the students write an analytical paper, which they must defend in class,considering a particular angle of a terrorism prosecution in their assignedforum, such as: what rights must be guaranteed to the accused; what legalrepresentation must be provided; and what, if any, role should be played bythe media. The students in the lab have demonstrated truly innovativethinking in analyzing these difficult issues.We must employ this same type of thinking at the highest levels of ourGovernment to ensure that we design a system that operates under the ruleof law; a system which properly balances the rights of the accused and thesafety of the community in a forum separated from the criminal justicesystem. If terrorists are engaged in a war of ideas to undermine our society,we must combat this psychological warfare with ideas of our own, rootedfirmly in the principles of our Constitution. We must educate the publicabout how, precisely, charges of terrorism will be handled within thisframework, to combat the confusion that exists today.If we fail in this effort; if we allow the public confusion that Iwitnessed during my first trial to persist and fester; our country and ourjustice system will only fall deeper down the rabbit hole.2004]

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Leaving Wonderland: Distinguishing Terrorism from Other Types of Crime

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