pageok
pageok
pageok
Mary Jo White on Counter-Terrorism and Civil Liberties:

Mary Jo White was U.S. attorney for the Southern District of New York from 1993 to 2002. In that role, she oversaw several terrorism-related prosecutions, including those the 1993 World Trade Center and 1998 U.S. Embassy bombings. Earlier today, she spoke at The City Club of Cleveland on the War on Terrorism and civil liberties. It was an interesting and provocative talk, not least because she was more "hawkish," and less concerned about government overreach, than I would have expected. Following is a summary of her remarks based on the notes I took at the event.

At the outset White said that she believes most of the actions taken by the federal government to counter the terrorist threat — including the creation of military tribunals, the detention of enemy combatants, tightening of immigration rules, passage of the USA Patriot Act and other measures — have been necessary. She further stated clearly that such actions will necessarily impact civil liberties, and she never shrank from this view throughout the talk. While stressing that the executive branch should not get a "blank check," and expressing her support for judicial oversight of federal action (such as in the Hamdi decision), she said that the "gravity of the threat" requires a serious government response, even if that means civil liberties are curtailed on the margins. (She also said that violations of civil liberties are far less today than during prior conflicts.) She said Americans must be "solicitous of civil liberties, but we must survive first."

Although a former prosecutor, White said that conventional criminal prosecutions should play a "small and diminishing part" of the counter-terrorism effort. The pre-9/11 prosecutions of the terrorists involved in the 1993 WTC bombing and other plots were a "great success story," but she nonetheless believes that the criminal law is insufficient to respond to the threat. Further, she said she "strongly disagrees" with those who argue that most of the post-9/11 measures were unnecessary. The terrorists are "smart and getting smarter," and the criminal justice system can only respond in limited ways.

During Q&A, White was a little more critical of current policies, suggesting that the federal government has not made its policies sufficiently transparent. Among other things, she suggested that the executive needed to do a better job explaining the details of and reasons for given policies. Asked about the NSA surveillance program, she said she thought that the President did have the authority to conduct such surveillance, though she said the issue had not been "handled well." Asked whether the War on Terror was sufficiently different from prior wars because it was potentially a "war without end," she said that this magnifies the concern for civil liberties, but it does not make this any less of a "war" to be fought and won.

At the end she was asked about the Zacarias Moussaoui verdict, and whether the alleged "20th hijacker" should have received the death penalty. White said she wished the jury had returned a death sentence, but she also said that the sentencing verdict sent a positive message to the outside world about the fairness of the judicial system — a judicial system, White made clear throughout her talk, that she thought would serve to prevent excessive intrusions on civil liberties during the War on Terror.

UPDATE: Some commenters want to know whether White addressed torture. According to my notes, she did not directly address the subject during her prepared remarks. The subject did come up during Q&A, however. White said it was hard to support torture and other extreme interrogation methods, but she also suggested that wartime exigencies might require it. She said the need to obtain information about future terrorist activities from those who are likely to have such information, such as Khalid Sheikh Muhammed, could make extreme steps necessary. She also suggested that the use of such interrogation techniques, and the fact that any information obtained in such a fashion would be inadmissable in a U.S. court, made the domestic prosecution of such detainees less likely. (Khalid Sheikh Muhammed, for instance, was indicted in the Southern District of New York several years ago.) One thing that was interesting was that White did not attempt to diminish the gravity of her position through word play, such as by arguing that the U.S. only uses "coercive interrogation techniques" that do not constitute torture.

Houston Lawyer:
It appears the the Moussaoui jury was much concerned with his less than perfect upbringing, as if that should shield him from the consequences of his attempt at terrorism. Hardly a shining example for that portion of the world that already has contempt for us.

I've not been a fan of Ms. White, but I'm glad to see she hasn't resorted to partisan hackery. Maybe I should revise my opinion of her upward.
5.5.2006 5:48pm
jgshapiro (mail):
Did she say anything specifically about her views on the administration's past use of (or tolerance of) torture of al Quada suspects?
5.5.2006 5:52pm
Freder Frederson (mail):
It's nice that she thinks we should execute people just because they happened to be associated with Al Qaeda. Even the government admits Moussauoi wasn't the "twentieth hijacker". I wish people would stop pretending he was.
5.5.2006 5:59pm
Steve:
I attended a Mary Jo White speech at a Federal Bar luncheon in New York a few years back. I remember her talking about how she hated the phrase "close enough for government work," as she felt government service required a far greater level of dedication from an attorney, given that your client is the entirety of the American people. She struck me as a very dedicated, serious person.

I always enjoy encountering people who are in government service for the right reasons. It's the essence of professionalism.
5.5.2006 6:06pm
Anderson (mail) (www):
It appears the the Moussaoui jury was much concerned with his less than perfect upbringing, as if that should shield him from the consequences of his attempt at terrorism.

In the real world, HL, juries take account of such mitigating circumstances all the time.

But the mere fact that 9 jurors found that applicable, doesn't mean that it was decisive in his being spared the death penalty.

As for Adler's post, predictable viewpoint for a prosecutor. A great deal does indeed hinge upon judicial oversight. Will we have it?
5.5.2006 6:19pm
A.S.:
Sounds like she's a chickenhawk. /sarcasm
5.5.2006 6:36pm
Clayton E. Cramer (mail) (www):
Freder Frederson writes:

It's nice that she thinks we should execute people just because they happened to be associated with Al Qaeda. Even the government admits Moussauoi wasn't the "twentieth hijacker". I wish people would stop pretending he was.
I don't know that anyone pretends that he was the 20th hijacker (who was turned away at a Florida airport from entering the U.S.) He was, however, part of the sequel to 9/11, and his failure to provide information upon arrest prevented the FBI from stopping 9/11. (Obviously, there were a number of other obstacles as well, including FBI officials who refused to take seriously the warnings coming from FBI agents in Phoenix and Minnesota.) He has admitted--proudly--that he came here to engage in terrorist acts. Is this why you find it necessary to mischaracterize him as only "associated" with al-Qaeda? I guess it is awfully important to continue to global struggle for Islamic fundamentalism, isn't it?
5.5.2006 6:47pm
Alex R:
I, too am interested in knowing if she mentioned the "torture" word, particularly given the Isikoff argument that the only reason the US prosecuted Moussaoui rather than, say Khalid Mohammad, the 9/11 "mastermind", is that we have tortured Mohammed and thereby made any evidence he produced inadmissable in court. In effect, he argues, we have made the real culprits unprosecutable by our actions.
5.5.2006 6:56pm
crane (mail):
It appears the the Moussaoui jury was much concerned with his less than perfect upbringing, as if that should shield him from the consequences of his attempt at terrorism. Hardly a shining example for that portion of the world that already has contempt for us.


How about the fact that killing him would greatly increase the chance of him being regarded as a martyr? Better to throw him in prison for life and let the world forget him, I say.
5.5.2006 6:59pm
Pio (mail):

How about the fact that killing him would greatly increase the chance of him being regarded as a martyr? Better to throw him in prison for life and let the world forget him, I say.


None of the jurors considered possible martyrdom an important factor in their decision. Nevertheless, I am pretty happy with the verdict, since the government's case for death hinged on him lying to the police before the attacks. Any legal theory which punishes withholding information from the government with death is suspect in my mind, no matter how important the information.

As for Mary Jo White's comments on the War on Terror, they are unsurprising coming from a prosecutor. This isn't meant as an attack on her character or anything like that; I just believe that those who get to take advantage of the extra powers may overvalue their importance, and those who spend considerable time dealing with terrorism issues may overestimate the threat. Those in government are also more likely to discount the danger of government abusing its power.
5.5.2006 7:10pm
Steve:
It seems particularly significant to me that three jurors took the trouble to "write-in" on the verdict form that they believed Moussaoui had limited knowledge regarding the 9/11 attacks. That's basically a statement that they didn't believe the entirety of the government's case (and, by implication, what Moussaoui pleaded guilty too).

I realize we're all looking for evidence to bolster our political preconceptions, but I find it a lot more likely that the discussion centered along these lines rather than that the jury said, "Well, gosh, he had such a tough childhood." After all, just because 9 jurors found he had a bad upbringing or whatever, we can't infer they felt that fact should actually sway the ultimate decision.
5.5.2006 7:33pm
Guest poster:
A lot of commenters are characterizing Mary Jo White's stance as "typical for a prosecutor." But it's not. Most DOJ officials have focused on arguing for broad, vague laws (such as the material support of terrorism statute, expanded by the PATRIOT Act and several other pieces of legislation) that further the DOJ's ability to criminally prosecute people for various acts of association with terrorists or involvement in the very early stages of terrorist plots. But Adler quotes her as asserting that enemy combatant detentions and military detentions are good, and that conventional criminal prosecutions should play a "small and diminishing part" of the counter-terrorism effort. It sounds like she's not arguing for an expansion of prosecutorial power — she's arguing that in matters of terrorism, military measures should largely supplant the criminal justice system! Scary stuff!
5.5.2006 7:35pm
Kazinski:
As time goes on I have a greater appreciation of the Clinton administration, and Mary Jo White's talk doesn't hurt. It seems almost all of the serious Democrats have dropped out of public life. Here you have a former Clinton Adminstration offical asserting that the threat of terrorism is real, and Bush is not overreacting to the threat. While I'll never be a huge fan of the Clintonistas, I am not aware of any high level Clinton offical that was in the National security arena that has asserted that Bush lied or hyped the intelligence, even though they have critisized the war on other grounds. That is because they knew what the intelligence agencies were actually saying. That is a positive contrast to most of the Democrats currently on the national scene.
5.5.2006 7:52pm
AppSocRes (mail):
My concern about Moussouai alive is that someday some hundreds of innocents will be held hostage and gruesomely slaughtered ad seriatem for prime time television audiences, while the captors piously promise that any survivors will be set free once we loose this turd back into the cesspool from which he back-flushed.
5.5.2006 8:13pm
therut:
AppSocRes--------Well if that happens (and it could very well) maybe some people will wake up and smell the coffee. I wonder if the so called "Christian Peacekeepers" and Code Pinko's will travel to where they are to beg for their lives. Nah. We will only hear "America deserved it". I agree with White that these people need to be tried in a Military Court. The ACLU type of thinkers I'm sure would be filling Lawsuit after Lawsuit to prevent this. Scary!!!! Hope they lose.
5.5.2006 11:42pm
Lev:

she also said that the sentencing verdict sent a positive message to the outside world about the fairness of the judicial system


She has two aspects confounded.

1. the process of the judicial system

2. the result of the judicial system

Similarly, there are two audiences that she assumes are the same.

1. the non-moslem audience

2. the moslem audience

To the non-moslem audience, e.g. the European Elitists, the process "sent a positive message" and so did the failure to impose the death penalty.

To the moslem audience, to the extent there are actually any who would not personally blow themselves up but who support the extremists, the process may send a positive message in that the US will follow its procedures no matter what, but that the US will follow its procedures no matter what and will not execute such a person as Zowie Mouie, shows that the US is a weak society with a weak system, unable to defend itself against the true believers of Islam. That a jury let Moussoui off the hook because of childhood issues further demonstrates that national weakness, and gives reinforcement to the belief that it is just a matter of time before Sharia Law becomes the law of the United Islamic States of America.
5.6.2006 1:24am
logicnazi (mail) (www):
I am already skeptical of anything this woman says just from her comments about the Moussaoui conviction. Sure, I can understand the emotional desire for revenge that many people feel but the fact that she seems inclined to trust her emotions of vengeance and righteousness rather than analyzing the situation for costs and benefits in the war on terror makes me worry that the real reason our civil liberties are being infringed is to satisfy these sort of righteous feelings about punishing the terrorists and not letting bad people get away with it.

There is simply no benefit to executing Moussaoui except the satisfaction of vengeance. No suicide bomber will be dissuaded from attacking if we execute him. The only possible consequences are the greater exposure of government information on his interminable appeals and loss of information in the unlikely event he still knows something worthwhile. Now many people are just going to argue that it is just right or he deserves it. Whether or not this is the case I usually find that the type of person who thinks in terms of 'just right' instead of consequences when debating the death sentence does so about criminal enforcement in general but fanatic terrorists really are a different sort of threat and require pragmatic policy calculations to combat not old fashioned attempts to be tough and stamp them out.

In short I worry that the type of person that is gung-ho on executing Moussaoui because 'he deserves it' or 'it's just right' looks at the world in general in those terms instead of as a cost benefit analysis. If these sort of people are dictating the war on terror this makes me concerned that the erosion of civil liberties is more the result of an emotional drive to 'get those guys' than a rational plan to minimize the chances of a future attack. Trading off civil liberties for safety is one thing but trading off civil liberties just to make sure the bad guys get what is coming to them is another thing especially if this actually makes us more safe. Yet this seems to be just what is happening in Gitmo. Even if we release a bunch of guilty people from gitmo they aren't big players and they won't make any difference to al qaeda, certainly not enough to warrant all the energy and resources we are expending to keep them locked up and create military tribunals not to mention the bad PR we get. I mean it seems beyond a doubt that our continued operation of gitmo is responsible for convincing at least 400 people to join al qaeda and affiliates meaning that even if we convict everyone still at gitmo we are still at more risk than we would have been had we let them all go a couple years ago.

This attitude of making sure the bad guy gets punished might be fine and great for criminal law but as they keep saying 9/11 changed the game. Deterrence just doesn't work with suicide bombers or fanatics so we should be less focused on making sure we can punish people based on secret evidence and more concerned with just using that evidence to stop attacks from happening. Yet much of the civil liberties worries could be addressed simply by barring the use of any of the information collected in these new ways from use in criminal cases/punishment (sure share information but just accept that you can no longer pursue the civil case if it is corrupted by intelligence info).

We already have some very good examples about how this way of looking at the world as simply right and wrong rather than doing cost benefit analysis is putting us at greater risk. For instance look at the tons of money and time that have been wasted adding air marshals to planes and adding extra security measures at check-in. Though this is a natural emotional response to 9/11 it is counterproductive in protecting us in the future. No airplane full of Americans would let hijackers take control again, the passengers now believe they will die anyway so many of them will fight to the death to subdue the terrorists.

Sure all other things being equal air marshals and extra security might be nice things but they take money and governmental attention, resources that might be better used to protect us from real threats at chemical plants and other weak points. If anything after 9/11 air travel became much safer and we should have diverted resources from protecting air passengers from carry-on weapons to more serious threats.

Admittedly I could be wrong and she would have preferred to give Moussaoui life in prison if she thought this would convince even one less person to join Al Qaeda. Maybe she actually gave a detailed analysis of why actually imprisoning low level terrorists is so important in reducing the risk of an attack that we can't just prevent the use of these invasive data gathering methods to prosecute. However, I would find this very surprising.
5.6.2006 1:48am
logicnazi (mail) (www):
Ohh, probably the jury had the same intuition that many of the rest of us did: Not spilling your guts to the FBI about a plot you have limited connection with just isn't as bad as going and killing them yourself and the less knowledge of the situation you had the less culpable you are for not telling them.

Does anyone know if this argument would fly in a normal criminal case. If I know my brother Joe is planning to kill his wife next Wednesday does my failure to inform the police amount to first degree murder? If I was involved in a conspiracy to kill his wife with him but then back out but stay quite does this then make me guilty? Does this sort of prosecution ever happen in normal circumstances.

Also can anyone give me a good argument why it is important that Moussaoui be executed? I mean something more substantial than you think he deserves it.

Finally I think the case brings up an interesting constitutional question that has bothered me for some time. How is it compatible with the first amendment to allow the jury to consider statements about the defendant's regret/repentance? Even though Moussaoui is a convict he still has first amendment protections and this means he should be immune from punishment for expressing the view that the 9/11 hijackers did a good thing. Yet if they had executed him the jury would certainly have done so partially on the basis of his post crime indeed post-conviction statements and beliefs. In fact we can even imagine cases (perhaps this is one) where it is a genuine issue of religious belief that the convict acted correctly (say an honor killing where the convict firmly believes one has a moral duty to kill one's daughters if they make themselves unclean).

So how can it be constitutionally permissible to consider expressions of regret or lack thereof when holding certain constitutionally protected views will get the convict executed?
5.6.2006 2:07am
American Psikhushka (mail) (www):
I for one welcome our new Neocon and Homeland Security Overlords.

A couple thousand religious fanatics are much more dangerous than Nazi Germany and Imperial Japan combined - modern, highly militarized states that had conquered a number of countries.

Big Brother is right: We have always been at war with Eurasia!

One thing though: Why did they implode building 7 on 9/11? I mean it usually takes them weeks to prepare a building for implosion, get it wired by demolition experts, make sure the area is clear, do engineering surveys, make sure no other structures are damaged, etc. This is NYC - there are subway tunnels and PATH tunnels there, gas lines everywhere, power lines everywhere, sewer lines everywhere. And remember this is on 9/11 - there were still people trapped in subway or PATH trains underground well into the evening that emergency personnel were trying to reach - and they imploded a building nearby? Seems strange, to say the least. Maybe this warrants some looking into.......
5.6.2006 2:50am
Jake (NYU):

Any legal theory which punishes withholding information from the government with death is suspect in my mind, no matter how important the information.


When you conspire to commit a crime, and the crime is ultimately committed by your co-conspirators, you are guilty of committing the crime. You have an opportunity to absolve yourself of guilt by providing information to the government; withholding information does not create guilt, but simply passes up your chance to erase it.

Similarly if you help a buddy plan to murder his wife and then back out of it. You're still a member of the conspiracy until you obviate your contribution (which generally involves going to the cops).

I agree that it's quite possible to stretch conspiracy liability to a degree that it becomes less comfortable. However, the Moussaoui prosecution was a straight up the middle conspiracy case which, to me at least, is not very troubling.
5.6.2006 2:57am
The Drill SGT (mail):
Kazinski:
.. While I'll never be a huge fan of the Clintonistas, I am not aware of any high level Clinton offical that was in the National security arena that has asserted that Bush lied or hyped the intelligence, even though they have critisized the war on other grounds.


How about Al Gore?

He was both the VP and since he was a Presidential candidate, he would have been getting national security briefs directly. Beyond that, he had a whole shadow cabinet of national security types who were read into the Saddam stuff on their day jobs, then went to advise Al on the campaign trail. Our view on WMD was the same for 5 or more years till we got there and opened the bunkers.

No excuse that I can see for his BDS problem WRT WMD other than his desire to pander to the Left.
5.6.2006 3:30am
Freder Frederson (mail):
I don't know that anyone pretends that he was the 20th hijacker (who was turned away at a Florida airport from entering the U.S.)

It's right there in the main post:

"At the end she was asked about the Zacarias Moussaoui verdict, and whether the alleged "20th hijacker" should have received the death penalty."
5.6.2006 9:57am
EricK:
I am much more concerned about the erosion of civil liberties on the local level than the Federal.

Can anyone tell me how their liberties have been infringed upon by the Patriot Act?
5.6.2006 10:01am
Hovering Shoe:
Mr. Cramer:

(1) I always thought that an arrested defendant had NO obligation to give information to the authorities. Miranda?

(2) You state and I agree that "FBI officials [ ] refused to take seriously the warnings coming from FBI agents in Phoenix and Minnesota."

Z.M. is a wannabe clown. He could have moonwalked into FBI headquarters with a megaphone a good month before 9/11 and the FBI still wouldn't have prevented the attack.
5.6.2006 1:08pm
Steve:
You don't have an obligation to give information to the authorities. Indeed, you don't have an obligation to withdraw from a conspiracy at all! But once you've already committed the crime of conspiracy, if you want to withdraw, giving information to the authorities is the way to do it.
5.6.2006 8:26pm
Kazinski:
Drill SGT

The way I understand it Al Gore's primary critisism of the Bush Adminstration is that they are being too tough on the Saudis. But seriously I forgot about Al Gore because I no longer take him seriously, I was thinking more of the Madeline Albrights, Sandy Berger's and the Clintons themselves. And I did not mention that Wesley Clark has also accused Bush of hyping the intelligence. Although Clark has the distinction of not being a Clinton Admin official, even though he was fired and relieved of duty by Bill.

But Al and Weasley not withstanding I think the point is at least 90% valid.
5.7.2006 12:05am