Technology and Policy in the Defense of Terrorism Cases

                                                                                      

Government funding for the criminal defense of the indigent exists to overcome the disparity between the resources of the State to prosecute and those of the powerless to defend. Disparity in the benefits of assistance of counsel, access to experts, and investigative resources are all recognized as being inconsistent with our nationŐs standards for effective assistance of counsel and due process.

 

While there is consensus of opinion in our courts that an adversarial system is a poor instrument for justice if the accused is without credible means of defense, the lay public perennially debates how appropriate it is to provide funds to defend the criminally accused. The arguments are framed in terms of whether one who commits a crime is deserving of public treasure to persuade a jury that he did not. Seldom is the argument made that the entitlement to a meaningful defense is not a question of public generosity but one of pragmatic public policy. In an adversarial proceeding, too stark a disparity between the means the State possesses to prosecute and those a defendant can muster to exonerate himself ensures a verdict without legitimacy, whether it is true to the facts of the case or not.

 

         In the generation since our nation came to define aggressive law enforcement initiatives in terms of wars – the war on organized crime, the war on drugs, the war on terrorism, prosecution at the Federal level has become more complex, more resource intensive and more monumental in scale. There is now more precious political capital at risk for the Government in each battle in the many ongoing Ňwars.Ó

 

The GovernmentŐs technological supremacy, both in terms of investigative tools such as electronic surveillance, undercover operations, and military technology in the air, on the land, the sea and in space, as well as in advanced digital information gathering technologies, produces a quantity of investigative information that is simply beyond any defendantŐs capacity to investigate for technical errors, factual inconsistencies or alternative scenarios. If counsel for the defendant cannot understand the discovery, there is no recourse to the evidence at trial, regardless of whether the allegations are factual or they are not.  Beyond a certain threshold, the cumulative complexity, logistic scope and sheer scale makes even the wealthiest defendant no more capable of its mastery than the indigent defendant with a court appointed lawyer. The GovernmentŐs powers make paupers of us all.

 

         Most major Federal investigations result in a scale of discovery that compels defense counsel to choose between will power and computer power. The brute force intellectual logistics of understanding the strengths and weaknesses of a massive Government case from a conventional review of the evidence would require human stamina and continuances of trial dates beyond the outer limits of what lawyers or the courts schedules could tolerate. It is not uncommon to find that an entire decade would reasonably be required to prepare for trial. A million document litigation would require a lawyer to read without stopping for over two years to accomplish just a two-minute first look at every page.

 

Guilt established by inundating counsel with more discovery than can possibly be understood before trial is guilt by presumption that this evidence would convict, if it were to have been reviewed.  This is a fail proof formula for the demise of the right to trial, because it is a hollow right indeed if there is no means to defend against even the most tenuous accusation when it is brought to bear in phalanx of facts without contest, only because there was no means to understand those facts well enough to contest them.

 

We have long understood the risks to individual liberty that are presented by ubiquitous surveillance and militarized law enforcement, but how few of us realized that the technological divide in our society between those who have digital tools and those who do not would be so reliable a predictor of who is convicted and who is not? Innocence is no assurance of acquittal when the miscues of a criminal investigation are buried beyond reach in a myriad of documents that will still be unread after the verdict.

 

Parity in the technological capability required to organize, analyze and muster salient defense evidence from the vast inventories of government is now as fundamental to the preservation of the right to counsel as is the physical presence of an attorney. Without seizing upon the technology essential to applying professional legal experience and training to the defense of clients in complex cases, no client has effective assistance of counsel. 

 

The most dangerous consequence of verdicts achieved by lopsided technological advantage is that they lack legitimacy. Verdicts to not achieve legitimacy because they are decisions about guilt, but because they are decisions arrived at as a consequence of dispute. Without an exhaustive adversarial proceeding in which evidence is put to rigorous challenge, there is no true closure and no resolution of the controversy at hand. It is the quality of trial, not a verdict alone, which gives us the fruits of justice.

 

We have now entered an era in the history of our criminal justice when the consequences of asymmetrical defense and prosecution resources do not only fall upon the heads of hapless defendants, their families and friends. The public perception that the accused is powerless to defend himself at trial exacerbates community cynicism and alienation that lessens the social cohesion of the community, whether that community is a small township or a mega-state.

 

Many Americans, comparatively insulated from civil unrest, class conflict and ethnic violence, tend to regard criminal justice as a mundane punishment delivery system where the only scale of justice is how much or little prison time the defendant should receive, rather than as a modern institution to promote social welfare and civil peace. In the absence of just outcomes to crimes of violence, property and civil strife, alternatives for dispute resolution such as retribution, revenge and vendetta, humanitiesŐ more traditional techniques, rise again from our primitive social reflexes. Criminal justice, in times of upheaval, must buy civil peace by paying heed to the process as well as the punishment.

 

In the last decade, the American government has embraced a more global frame of reference for the jurisdiction of federal courts. We have become hyper-proprietary in the administration of all justice in all political crimes committed against any American citizen. As such, there are new calculations to be made as to what our hegemonous political and legal culture must integrate as standards for criminal justice as it acts upon world opinion on an international stage.

 

Here again, in our own national interest, we must carefully avoid doing more harm than good to the tranquility of nations, cultures and peoples. The stakes are no longer the singular fate of one individual, or even the domestic peace of one people, but our whole nationŐs fate in a new world in which science and technology have made conflicting world cultures gratingly intimate and made more vivid the many contradictions of democracy and dictatorship, prosperity and poverty, tolerance and intolerance, with which we as a nation have coexisted at a greater and safer distance until now. 

 

As we embark upon an era of political trials as a national response to terror, nothing we can do is more pragmatic to our interests, more essential to the good ambassadorship of our American legal traditions than a national commitment to assuring the highest quality defense for those accused of terrorism in American courts. That commitment will not be satisfied behind closed doors in proceedings of lesser protections for liberty, with lesser opportunity for the defendant to be heard and to contest the accusations. The legal principles of Americans, not the principles of terrorism, are drawn into the shadows by the administration of justice in seclusion. Instead of trying to revise our own traditions of fairness by restraining the scope of evidence, crippling the defendantŐs capacity to examine that evidence and disowning the jury system, it is in our national interest to conduct the most exhaustive proceedings, ones in which the accused is afforded every capability to cobble a defense from every nook and cranny of the evidence and the four corners of the world.

 

Only when generous supportive resources and the highest caliber of advanced litigation technology are available to the defense can a trial of a political figure overcome the suppression of information that will later be exposed and exploited to mesmerize those who perceive their cause as abused by the trial outcome. What we secret away for the moment is forever toxic to a historical validation of the verdict, our cause and our society.

 

We may want to do a good bit of harm to those who inflict violence upon innocents, but we will do more harm than good to ourselves if we cannot demonstrate to all that moderation, equanimity and equality are inalienable aspects of our institutions of justice.

 

We may well live in a global village, but there are few village idiots. In a world as wired as ours, there is no part of our planet that does not opine on the dayŐs world events like old friends in a neighborhood barbershop. We cannot fool anyone with superficial rationalizations that pretend fair trial where there is none. It is not a matter of an accused terrorist receiving the trial he deserves, but rather our using the integrity of our justice as a means to obtain the future we deserve.

 

If we allow the trial of those who despise our values to fall one centimeter short of the highest quality of justice we can produce, then that shortfall will become a seed of discontent that will be harvested against us. Our failure now to trust what our forbearersŐ vision fashioned out of the bitter conflicts of our own revolution will cause resentments that will echo across future generations to come. More can be done now to preserve freedom with a gavel than can be preserved with a gun.