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.