Justice and Terrorism

- taking the example of the Padilla, Hamdi, Moussaoui and Motassadeq [1] cases

by Dr. iur. h.c. Gerhard Strate, Attorney-at-Law in Hamburg, published in HRRS 2004, p. 239

New York , that jewel among metropolises, and its residents became the victims of an attack on September 11, 2001. The only reason why the monstrosity of this does not transcend our fantasy is because it really did happen. This attack cost thousands of people their lives. The shock waves, which are continuing, affect the very foundations of our social existence, as well as and particularly those of our legal system. Principles, that were regarded as iron, are called into question. The questioners talk and act as though they were courageous open-minded thinkers who appear to be out for their listeners’ and readers’ indignation. A renowned Harvard professor (Alan Dershowitz), whose biography is characterized by his courageous defense of civic liberties, suddenly becomes a supporter of torture, albeit under allegedly strict, judicially ordered rules. A German teacher of criminal law (Günther Jakobs) is beginning to ponder whether the classical “civil criminal law” is sufficient which he compares with “enemy criminal law” on the level of so-called “ideal types”. In a recently published paper, he then quickly lets the philosophical discourse between him, Rousseau, Hobbes, Kant and Fichte become practical:

“Anyone to whom that all still appears uncertain may be helped to elucidation in a flash by a reference to the deeds of September 11, 2001. … Crimes remain crimes even if they were committed with radical intentions and on a grand scale. But it very certainly does have to be asked whether, through its strict fixation on the category of the crime, a commitment is being imposed on the state - namely the need to respect the offender as a person - which is quite simply inappropriate towards a terrorist who particularly does not justify the expectation of general personal behavior. In other words, anyone bringing the enemy under the term of the bourgeois criminal should not be surprised if the terms ‘war’ and ‘criminal proceedings’ become confused.”[2]

The fact that the terms ‘war’ and ‘criminal proceedings’ do not become confused is, though, not a question of philosophical distinctions, but often also a question of quite personal commitment and determined courage. I would like to present two brief portraits of ‘silent heroes’ here at the outset:

1. The case Padilla v. Rumsfeld

The first one is that of an attorney in New Jersey. The date is 6.10.2002. On this Monday morning, Donna R. Newman is just driving along the turnpike from New Jersey to Manhattan to a routine court hearing that she has to attend when she receives a call from a friend who works in the District Attorney’s office. “The Pentagon has seized one of your clients”, she hears at the other end of the line. Her client, Jose Padilla, had been declared an “enemy combatant” by the President of the United Stateson the day before, on 6.9.2002. Until then, Donna R. Newman had dealt with the everyday cases of criminality in a large city as an attorney practicing alone from a small office in West Manhattan. Her first reaction was incredulous: “I thought he was joking, I had never even heard of an enemy combatant.”[3]

What had happened? On 5.8.2002, Jose Padilla, an American citizen, had entered the country through Chicago Airport , coming from Pakistan. There he was arrested by FBI officers on the basis of a “material witness warrant” issued by a New York judge, namely in connection with the investigations into the attacks on 11.9.2001. He was taken to New York and brought up before the judge responsible there. As Padilla did not have a legal representative, the judge assigned Donna Newman to him as counsel. She had several conversations with Padilla and finally filed the motion on 5.22.2002 that the material witness warrant be set aside. 6.11.2002 was appointed as the date for the hearing on the motion by the District Court for the Southern District of New York. Two days before this date, the judge was informed that the President had issued an order against Padilla, “designating Padilla as an enemy combatant and directing Secretary Rumsfeld to detain him”. Before Donna Newman could speak to her client for a further time, he had already been handed over by officials of the United States Marshal Service to Department of Defense officials and taken to a high security military prison in Charleston , South Carolina. Since then, he has been held incommunicado there, i.e. cut from the outside world, without access to his attorney or members of his family.[4]

Donna Newman did not want to take this lying down. Even during the hearing, which had really been intended to consider the material witness warrant, she drafted a petition of Habeas Corpus, proceedings for a judicial review of an incarceration. As Padilla was no longer able to sign a power of attorney for her for this purpose, she petitioned for Padilla as “next friend”, which is possible under the legal tradition in the United States.

She gave vent to her first indignation in harsh words: “As a citizen, it frightens me. I’m frightened that the rest of America doesn’t see it. If it can happen based on somebody’s suspicions, it means you can pluck people off the street and nobody will know. … That’s what they had in Argentina.”[5] In the two following years, Donna Newman devoted herself exclusively to this case. A second lawyer was assigned by the court to assist her and Padilla. In the course of time, she received more and more support, not only from the National Association of Criminal Defense Lawyers and the American Bar Association, but also from conservative institutions, such as the Rutherford Institute, and a multitude of further organizations. The recital of parties of the last judicial decision won by her lists a total of fifty “amici curiae” who had submitted supportive opinions.

The government countered her petition of Habeas Corpus: Donna Newman did not have a power of attorney. She was not a next friend either; she had only talked to her client a few times, no friendship would develop from that. In addition, Secretary Rumsfeld was not the correct adversary, if at all, she should take legal proceedings against the director of the prison. In addition, the District Court in New York had a lack of personal jurisdiction. As Padilla was “in association with Qaeda”, it was to be feared that he would participate in terrorist acts against the United States and it was thus justified to hold him as an “enemy combatant” in a military prison.

On 6.10.2003, the District Court first ruled: Donna Newman may submit a petition of Habeas Corpus for Padilla as a “next friend”; in addition, Secretary Rumsfeld was the correct addressee for the suit; the court also had jurisdiction for the ruling; in addition, Padilla did have the right to advice by a lawyer; the District Court ordered that the parties agree terms under which Padilla could talk to his attorney. Secretary Rumsfeld refused to do this. The District Court did at least agree with the government in so far as it acknowledged the President’s right to give people the status of an enemy combatant; in view of the evidence to hand, this was also justified in Padilla’s case.

The appeals lodged by both sides led to a complete success for Donna Newman in a revolutionary ruling by the United States Court of Appeals for the Second Circuit of 12.18.2003.[6] The President, according to the Court of Appeals, did not have the right to seize American citizens on American soil with reference to his function as Commander-in-Chief and have them incarcerated, invested with the status of an enemy combatant; such a measure would have to have been authorized by the Congress.

They preface their ruling, which is marked by a detailed, historical-constitutional argumentation, with the following, quite moving comments:

“As this court sits only a short distance from where the World Trade Center once stood, we are as keenly aware as anyone of the threat al Qaeda poses to our country and of the responsibilities the President and law enforcement officials bear for protecting the nation. But presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the President is obligated, in the circumstances presented here, to share them with Congress.”[7]

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[1] The article is a slightly adapted version (also provided with further footnotes) of the lecture the author gave on 6.10.2004 at a function given by the Federal Bar Association on the occasion of the 125th anniversary of the founding of the German Bar Associations in Berlin.

[2] Jakobs, in HRRS [www.hrr-strafrecht.de] 2004, 88 ff.

[3] National Catholic Reporter, 7.3.2003 (http://natcath.org/NCR_online/archives2/2003a/030703/030703j.htm).

[4] Not to assist in understanding, but solely in order to point to the (also) emotional roots of many activities by the current American government and its constitutional justification, it may be pointed out that the United States of America last found itself exposed to military attacks on its territory (by British troops) in 1814. The terrorist attacks on the World Trade Center are understood as being an enemy attack on its territory not just by the Bush administration, but also by sections of the population. From this it is deduced that dealing with persons, who appear suspected of participation in terrorism, is (in part) justified legally by recourse to law from times of war. In this connection, the US Supreme Court ruling “Ex Parte Quirin et al.” of 31.7.1942 (317 U.S. 1, 12/13) plays a special role which concerned a matter of seven agents who had been landed from U-boats on the Eastern coastline of the US, in order to carry out sabotage acts in the USA. Here the US Supreme Court found that “ordinary constitutional doctrines do not impede the Federal Government in its dealings with enemies”, they therefore had no right to submit Habeas Corpus petitions to the ordinary courts; the president's rights with regard to enemies “must be absolute”. Two of the agents claimed that they were American citizens; the US Supreme Court did not see any reason in this to treat them differently from the German agents: “This does not change their status as ‘enemies’ of the United States ”. In addition, for the direct justification of incarcerations in the case of “enemy combatants”, the Joint Resolution passed by the Senate and the House of Representatives on 9.12.2001 is also called into play by government representatives.

[5] As in note 3.

[6] The United States Court of Appeals is the highest ordinary Federal Court of the United States of America , comparable to the German Federal Court. It is divided into a total of eleven “circuits” which have jurisdiction in each case for the Federal District Courts of several states. The territories of the District of Columbia (the territory of the federal capital Washington) or Puerto Rico, which are subject to a federal administration, but do not possess the constitutional status of a state of the union, also form circuits of their own; all in all, there are thirteen circuits. Cf. on this Niklaus Schmid, Strafverfahren und Strafrecht in den Vereinigten Staaten, 2nd edition, Heidelberg 1993, p. 46/47.

[7] These, as also the rulings by US courts quoted here below, are to be found in the Internet under http://news.findlaw.com/legalnews/
us/terrorism/cases.