smelly-fish.gifI know you are all probably sick and tired of hearing me weep for the destruction of the ethical culture I once knew in DOJ. For the loss of the integrity and honor that was once the hallmark of that once great institution. However, it is important for people to understand the ramifications of this, not just for the rule of law, but for our safety.

The New York Times had an article with a really significant piece of information that for some reason is not getting a lot of play in the media. Adam Liptak and Leslie Eaton are reporting that in a Department of Justice that ordinarily enjoys a 92% conviction rate, the rate for terrorism cases is a shockingly low 29%.

From the Times:

There was a time when federal prosecutors would consistently win terrorism prosecutions.

From 1993 to 2001, prosecutors in Manhattan convicted some three dozen terrorists through guilty pleas and in six major trials.

Yes, that was back in the days when US Attorney SDNY Mary Jo White put her trust and confidence in Dave Kelley and Pat Fitzgerald and let them form the very first counter terrorism unit in a USAO in this country.

Since the Sept. 11 attacks, the government’s track record has been decidedly spottier, and its failure to obtain a single conviction on Monday in its terrorism-financing prosecution of what was once the nation’s largest Islamic charity was another in a series of missteps and setbacks. The comparisons are in some ways unfair, as the earlier prosecutions were for completed acts of violence — like the first World Trade Center attack or the 1998 bombings of American embassies in Africa — or for conspiracies that were relatively close to fruition.

I could not disagree more. The Day of Terror Plot and the Millennium Bomb Plot and the Manila Airplane Plot were hardly “easy” cases. And by foiling them BEFORE anyone got hurt, Mary Jo’s counter terror unit saved thousands of lives. She details these cases in an article in Middle East Quarterly published the spring before 9/11.

But some scholars and former prosecutors say the government should have known better than to bring some of its recent failed cases and that a lack of selectivity and judgment, along with a reliance on stale evidence and links to groups not at the core of the current threat, may be harming the effort to combat terrorism. The pre-9/11 cases brought in Manhattan, said Peter S. Margulies, a law professor at Roger Williams University in Rhode Island, “reflected U.S. attorneys and federal prosecutors at their best, using their discretion, bringing cases when they had strong cases and declining to bring them when they were weak.”

Let me tell you how it is supposed to work. Normally, when a AUSA thinks a case has been developed enough and is ready for indictment, you go to your unit chief and lay out what you have in the way of evidence, what statute(s) you want to charge under, and your theory of the case. This is usually done in a conversation, or more commonly several conversations during the course of the investigation as each element of each crime under consideration is developed. It’s good to keep your boss informed of your incremental progress both so he knows you’re not goofing off and because his advice will keep you headed in the right direction.

When you get to the point where you think you have a prosecutable case, your boss will give you the go ahead to start writing a draft indictment. Long ago when the earth was young and I still worked for government, I was the queen of the 300 page indictment. You would be surprised how often in the course of laying out each element of each charge I would suddenly realize that “oops” we were missing a piece and have to send the agents back to the salt mines. They hated that. When the draft indictment is finally done (weeks sometimes months after you “thought” your investigation was finished), it gets sent up the ladder.

Your unit chief has to approve it. Then the chief of the criminal division has to review it, sometimes there is an interim step (especially with complex cases or novel/sensitive cases) where a deputy criminal division chief has to review it. Then it goes to the executive floor where it gets reviewed by the senior people right under the US Attorney and finally by the US Attorney himself.

At every step in this process it can get kicked back because one of these people thinks it needs more proof or because someone believes your interpretation of the law is incorrect or unfair. At any step of this process it is not unusual for there to be a meeting where the case is “murder boarded”.  PatFitz described that kind of a meeting [YouTube] in a speech he gave last week.

Material-support cases are just a small fraction of what the Justice Department counts as terrorism prosecutions, and in the larger picture the government is not doing nearly as well. According to the Center on Law and Security at the New York University School of Law, the government has a 29 percent conviction rate in terrorism prosecutions overall, compared with 92 percent for felonies generally.

Why? Because the process I just described has obviously been subverted with respect to cases that the Bush White House has been trying to shove down the throats of the US Attorneys.

Whether it’s trying to force Carol Lam to divert limited resources into more gun prosecutions, or trying to strongarm David Iglesias into bringing bogus corruption cases, or to digress over to the CIA where John Bolton and Dick Cheney tried to pressure the CIA into reaching conclusions not supported by the facts; the “stovepiping” of prosecutorial decisions, like the stovepiping of intelligence has broken our intelligence and law enforcement capabilities and MADE US LESS SAFE.

The system is designed to work from the bottom up, with each layer of review forcing the work product to become stronger, more polished and less likely to contain error. When the work product swims upstream it gets better and better. When the work product is force fed down the gagging throats of professionals, when the facts are manipulated and fixed around a predetermined outcome, you end up with cases you can’t prove and intelligence estimates you cannot rely on. And in the process you brutally strip people of basic constitutional protections, something we did not need to do when SDNY won all those convictions and stopped multiple plots each of which would have murdered thousands of people. This is not the way it’s supposed to be. [YouTube alert. More from Pat's speech.]    As Mary Jo said:

In many ways, prosecuting terrorists is not much different from prosecuting other violent criminals. The laws are the same; the rules of evidence are the same; and, unlike in most other so-called civilized countries, terrorist defendants charged and tried in the United States are accorded all of the rights and protections given to every other accused defendant in our criminal justice system. That is how it should be. As proud as I am of the work of the prosecutors in my office that led to the convictions in these cases, I am even prouder of them and our entire criminal justice system because, despite the extreme seriousness of their crimes, all of these defendants were given an eminently fair trial and accorded every measure of due process that our laws provide.

She proved, time and time again that gutting the Constitution does not make us more safe, it MAKES US LESS SAFE.

In the trial that ended on Monday with a mix of acquittals and deadlocks, the Holy Land Foundation and several of its officials were charged with giving money to Hamas, the militant Palestinian organization designated a terrorist group by the United States in 1995. The Federal Bureau of Investigation started looking into Holy Land in 1993.

Legal experts said it could be hard to prosecute cases in which some of the evidence was quite old. Indeed, much of the evidence had been available to prosecutors in the Clinton Justice Department, and the material support law was enacted in 1996. But those prosecutors did not pursue the matter.

“There are some of these cases that we did not push — certainly aggressively, sometimes not at all — because we were in a different mindset before 9/11,” said Andrew C. McCarthy, who led the 1995 prosecution of Sheik Omar Abdel Rahman, the blind cleric convicted of conspiring to wage war against the United States.

What Andy appears to be trying to saying in a tactful and diplomatic way, is that pre-9/11 everybody in the DOJ thought they were bound to uphold the rule of law, but after Buscho and 9/11, well……?

So what to do? The tall man in the rumpled suit had some thoughts on that as well.  [last YouTube alert.]    Though his remarks had to do with public corruption at the state and local level in Chicago, I think they apply with equal wisdom to all corruption in office and the responsibility we have as citizens to demand our right to have honest government.

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  3. Tortured Logic: Government’s Own Words Fail Our National Ideals
  4. Some Alleged 9/11 Plotters to be Tried in SDNY, Storehouse of Evidence Untainted by Torture
  5. David Kris: Our Only Military Commission Convictions May be Illegal