Terrorism Cases To Bring New Scrutiny To N.Y. Court

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The federal courthouse in Manhattan has seen a series of high-profile terrorism cases before now, but the trial of Khalid Sheikh Mohammed and the other Guantanamo detainees will be the most scrutinized by far. Melissa Block talks about some of the legal obstacles to come with Joshua Dratel, a consultant with the ACLU's John Adams Project, which fought on behalf of Guantanamo detainees to get their cases transferred out of military court.


We're going to get the perspective now of a criminal defense attorney who has represented terrorism suspects in both federal and military court. Joshua Dratel is the consultant with the ACLU's John Adams Project, which fought on behalf of the detainees to get their cases transferred out of military court. He joins us from New York. Welcome to the program.

Mr. JOSHUA DRATEL (Consultant, ACLU's John Adams Project): Thank you, Melissa.

BLOCK: And Josh, the federal courthouse in Manhattan, close by ground zero. There are indelible memories, of course, of 9/11 throughout the city. Do you think they'll be able to find an impartial jury?

Mr. DRATEL: That will be a challenge for everyone, for the judge, for the defense attorneys, for the jurors themselves - the media, too, I think, to treat this in a way that does not continue to taint the jury in a matter that makes a fair trial impossible. The voir dire - which is what we call jury selection - will have to be particularly searching in order to uncover particular biases that people may have, some of which they may not even be aware of because they've pushed some of the emotional part of 9/11 deep into the recesses of their psyche.

BLOCK: And if you were representing one of these detainees, what would you want to ask the jurors - the potential jurors in jury selection?

Mr. DRATEL: There would be some direct questions and some indirect questions. And by direct, I mean what is the impact of 9/11 on you? What has it been for you for eight years? Where were you at the time it happened? And then some indirect questions about do you know people who were affected? Do you have, in your family, for example, members of the fire department, members of the police department? And any other connections that might be a factor in people's attitudes that they may not have at the tip of their fingers in terms when they answer a question - you know, how do you feel about 9/11, that answer may be a lot less revealing than these follow-up questions. They get into particular relationships that may reveal a lot more.

BLOCK: Obviously, there are a lot of questions about evidence and what would be admissible, especially statements or confessions that may have been obtained through harsh interrogation techniques, including waterboarding. What do you expect to see in terms of motion from defense attorneys on those questions?

Mr. DRATEL: I can't predict it, obviously, because I'm not involved in representing the people, and that's an individual choice team by team, defendant by defendant. Obviously, the question of, as you said, the statements themselves, if the government seeks to use statements that were the products of coercion or of interviews that occurred after the coercion, there is a principle that the Supreme Court has endorsed for 40 years now, which is that outrageous government conduct can deny the government the right to prosecute altogether.

BLOCK: There was reaction today from Debra Burlingame, the sister of the pilot of the plane that crashed into the Pentagon. And she said she was sickened by the prospect of these barbarians being turned into victims by their attorneys -in other words, attorneys raising the idea in court that they had been tortured. Would that logically be a part of defense strategy, to raise sympathy on part of the jury for the defendants?

Mr. DRATEL: It's not a defense in terms of sympathy. It's a legal issue, first of all, in terms of whether or not the evidence that's been obtained has been obtained properly. The second is it's not the lawyers who would be turning these people into victims. It's the people who abused them turned them into victims.

BLOCK: And you're convinced, in the end, that detainees have a better chance at justice in civilian court, and not military court.

Mr. DRATEL: That's correct. My experience in the commissions and going through two iterations of the commissions with David Hicks, my client, at some place, you just have to recognize that you've bought a lemon. This is a lemon system. It's designed to secure convictions instead of a public trial with all of the rights afforded to defendants that they get in ordinary cases. Everyone gets equal justice. And that is what makes us stronger country, and that's the kind of security that's not physical, but comes from our values. And that's, to me, as important.

BLOCK: That's defense attorney Joshua Dratel who has represented terrorism suspects in both federal and military courts. Mr. Dratel, thanks very much.

Mr. DRATEL: Oh, you're welcome.

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