The Evolution of Terrorism Prosecutions: My Speech at the Federal Bar Council By Andrew C. McCarthy
https://pjmedia.com/andrewmccarthy/2017/01/12/the-evolution-of-terrorism-prosecutions-my-speech-at-the-federal-bar-council/
Next month, we will mark the 24th anniversary of the 1993 World Trade Center bombing.
The prosecutions that followed, including the one I was privileged to lead against the terrorist cell of Omar Abdel Rahman (“the Blind Sheikh”), were pivotal in the development of American national security policy. Up until the 9/11 attacks, almost all of these prosecutions took place in the jurisdiction of the United States Court of Appeals for the Second Circuit.
On Wednesday night, I participated in a Federal Bar Council program on “The Second Circuit and Terrorism” along with former Attorney General Michael Mukasey (the former chief judge of the SDNY who tried the Blind Sheikh case), Judge Joseph Bianco (my former SDNY colleague who later served as a Deputy Assistant Attorney General in the Bush Justice Department), and Roger L. Stavis (who represented Sayyid Nosair, one of the principal defendants in the Blind Sheikh case) in a panel moderated by Fordham Law School Professor Karen Greenberg (who directs Fordham’s Center on National Security). Below is my speech at the start of the program.
Since I don’t get back to my old haunts nearly as much as I’d like to, it is a thrill to be here in our grand courthouse in the Southern District of New York, among so many old friends and colleagues. It is a real privilege to participate in this panel on “The Second Circuit and Terrorism,” with people I’ve learned so much from over the last — I don’t even want to think about how many years have gone by. Let’s just say there was a lot more hair on my head, and a lot less of, well, me, when I first met most of them.
My role at the beginning of this evening is to give a brief overview of how terrorism prosecutions have evolved. What happened here in the Second Circuit, and particularly in the cases that originally sprung out of our SDNY office after the World Trade Center was bombed in February 1993, is ingrained in the foundation of American national security policy — both in terms of what the judicial system could achieve, and where other components of government needed to step up and fill security voids.
In addressing this topic, I’ve always thought it important to point out that when terrorism arrived in our homeland in the systematic way we have experienced it in the last quarter-century, nobody sat around the table and thought about how we should respond to it. There was no grand policy debate asking, “Is this a crime, or is it a war?” “Is our civilian process of criminal prosecution up to this, or do we need to resort to military justice and the ancient laws and customs of war?”
What happened, instead, was an explosion.
When a critical incident occurs domestically, regardless of whether it appears to be terrorism, a major accident, or a natural disaster, it is the first responders who answer the call — police, firefighters, emergency medical personnel, and the like. Back in 1993, we didn’t even think about the military or our intelligence community, which are restricted by various statutes and regulations from operating inside the homeland.
In the case of the World Trade Center attack, there was a quick determination that a bombing had occurred. In what seemed like the blink of an eye, we had six people in custody. Nobody thought about whether they were better understood as “defendants” or “prisoners of war.” Their arrests triggered due process protocols and speedy trial clocks. Within a couple of weeks, there were indictments.
While bail hearings were being held, discovery was being made, and trial preparation was underway, we learned that the same jihadist cell was preparing another ambitious attack against our City. Suddenly, we were simultaneously ramping up for trial and conducting a massive, anxiety-ridden undercover investigation — at the end of which, a dozen more terrorists were apprehended, starting the whole process over again.
No one had much time, at least in New York, to consider the implications of all this. From our perspective, we we’re not making national policy; we were a prosecutors working with our colleagues in the FBI, the NYPD, and all the Joint Terrorism Task Force agencies, to investigate violent crime plots and build criminal cases.
There were a number of difficult, novel issues that arose. The way in which we dealt with them, coupled with the fact that we were acquiring an understanding of the terrorists, and building an intelligence product by interviewing witnesses and suspects, turned out to mean that we were building a template for how terrorism would be handled. But nobody thought about it that way at the time. We didn’t see ourselves as pioneers. We were prosecutors. Like most things in litigation, you thought about issues as they came up. CONTINUE AT SITE
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