War on Terror - Paul Batista Guest Post 3

This guest post is written by Paul Batista!

WHY TRYING TERRORISTS IS AN ENTIRELY DIFFERENT ANIMAL

My novel, Extraordinary Rendition is about the trial of an accused terrorist.  The CIA claims he functioned before his arrest as the banker for Al Qaeda.  Ali Hussein was arrested in Europe by American agents and transported to "dark prisons" around the world. After years in isolation at Guantanamo bay, Ali Hussein is brought to the United States for trial.

Right now the United States is actively pressing the trial of Khalid Sheikh Mohammed, the Al Qaeda leader accused of being the mastermind of the 9/11 attacks.  Every day there are news stories not only about who he is and what he allegedly did but also about the difficulties of prosecuting an accused terrorist in an era of national security concerns, some real and some imagined.

It has taken more than a decade to bring Khalid Mohammed to trial.  Likewise, it has taken years after his arrest to bring Ali Hussein—the accused terrorist whose trial is at the heart of Extraordinary Rendition—to trial.  From the outset the fictitious trial, (just as from the outset of the actual trial of Khalid Mohammed) many fascinating and wholly unexpected problems beset the prosecution; and at the same time, confront the defendant.

Why are these cases so difficult and complex?  Here's the source of the problem: the prosecutors claim that key portions of their evidence come from confidential informants.  The argument runs that anything that discloses the identities of these informants jeopardizes them, and more importantly, jeopardizes national security interests.  In the shadowy world of criminal prosecution in general, an informant could be anybody the government wants to call as a witness at trial -- a wife, a business partner, a co-conspirator, another prisoner who claims to have heard the defendant say something in prison that amounts to a confession.

In an ordinary criminal case, a defendant is allowed to confront the witnesses against him at trial.  This applies to typical witnesses -- such as people who've seen the event -- and to confidential informants.  The Constitution, after all, provides that a criminal defendant has the right to "confront" the people who testify against him at trial -- to look right into the witness's  eyes.  In virtually all trials, the defendant's lawyer has a roving commission to learn everything she can about any witness, including an informant, and to cross-examine him in order to discredit him.

But in the brave new world of terrorist cases the government resists  letting the defendant know who the informant is. The prosecutors want  to provide as little information about the informant's background as possible.  They  even prefer that the informant not appear in the courtroom but instead give testimony from a remote location through video-conferencing.  The same desire to block access to information about the witness extends to documents as well.  The goal is secrecy, not transparency.

This approach runs counter to more than 200 years of experience in conducting criminal trials in this country.  At least in theory, and very often n practice, a defendant has the right to know all the evidence, including the evidence that might exonerate him as well as the evidence that might convict him.  For example, if a witness testifying against a defendant himself has a prior criminal record, the defense lawyer is not only entitled to know that but to exploit it on cross-examination in order to undermine the witness's credibility.

At least in theory the United States doesn't want to have trials that are the functional equivalent of Star Chamber proceedings.  Anonymous witnesses, secret documents, and closed-door hearings smack of the inquisition, not a modern trial.

To be blunt, all defendants -- including Khalid Mohammed in Guantanamo bay and ‘Ali Hussein in New York  -- have no interest in justice.  They have an interest in acquittal.  Just as the prosecutors will use every means available to get a conviction, a defendant will use all available means to be found not guilty and to walk free.

As Extraordinary Rendition reveals, there is another element to the prosecution of an accused terrorist.  The public, more so than in other criminal cases, wants vengeance.  This desire for vengeance, coupled with the prosecution's perceived need for secrecy, immensely complicates the defense.

Extraordinary Rendition shows that there are other unique and explosive elements in the prosecution of someone accused of terrorism.  The United States wants to demonstrate to the world that it is a model of justice and that even a despised defendant can get a fair trial.  But the spectacle of the government using anonymous witnesses, secret documents and closed proceedings looks more like a trial in Moscow rather than New York.

And as in any trial there are the human elements.  The prosecution -- including the prosecuting lawyers, the FBI, the CIA and secret military intelligence agents -- is driven by the desire for a conviction.  Without a doubt the prosecutors of Khalid Mohammed believe to a moral certainty that they have the mastermind of the 9/11 attacks.  By their very nature, defense lawyers  have a firm belief that the government has to prove their client's guilt beyond a reasonable doubt.  This leads to a personal intensity in the competition, sometimes a deadly one given the prospect of the death penalty in any terrorist case, that makes a criminal trial such a powerful emotional experience, perfect fodder for a compelling book.