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July 25, 2005
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| Former federal public defender Dan Scott says his first terrorism case meant visiting a client who didn't exist on paper. (MPR Photo/Elizabeth Stawicki) |
Minneapolis, Minn. — Former Minneapolis federal public defender Dan Scott remembers going to visit his first client held on terrorism-related charges. The anonymous person, Scott says, was held in an empty wing of the Hennepin County jail.
"And I'd say, 'I'm not here and I'm coming to see a person you don't have, and you're going to let me in.' The guard on the floor would look at me like I was crazy, call the sergeant and up I'd go," Scott recalls. "I wouldn't have to sign up for anything. And I'd see this person that was being held under a false name, and then I'd leave and nobody would write anything down."
Scott's former office, the federal public defender's office, once represented Mohammed Warsame. Because it is a terrorism case, Scott and anyone working on the case had to obtain a security clearance. Getting clearance can take several months. But without it, a lawyer can't see classified information that could help his or her client.
Warsame's case has been doubly delayed because Warsame hired his own lawyer midstream, which meant waiting four months for that lawyer's clearance.
While attorneys can get cleared to access classified information, the defendant cannot. Scott says that means the lawyer can't question his or her client about, for example, the nuances of an alleged conversation.
"If you've got some client who's talking on the phone in some drug case, you can sit down with him and go over word for word. And the client can say, 'No no no, when we were talking about pizza it wasn't a code word for drugs, we were ordering a pizza from Domino's.' And if you check a few calls later you'll see the call to the Domino's guy," Scott says.
Terrorism cases are not only more complex for defense lawyers, but also more complex for prosecutors. Assistant U.S. Attorney Mike Ward is part of the team prosecuting Warsame. While Ward would not comment on the Warsame case specifically, he said such cases in general are more time-consuming and more difficult because many countries can be involved.
"[You] might have a fraud case where witnesses and evidence may be located overseas, particularly in some banking haven in the Caribbean, but usually it's just one country. These types of cases tend to transcend the globe in terms of who and where you might collect the evidence from," Ward says.
Prosecutors in routine criminal cases generally deal just with law enforcement or the FBI. In terrorism cases, prosecutors must negotiate with many government agencies that have individual interests.
William Mitchell law professor John Radsan, a former Justice Department trial attorney and assistant general counsel for the CIA, says prosecutors in terrorism cases are much more dependent on other government lawyers and government agencies.
"A prosecutor may have to navigate through the FBI to gather the classified information that they have gathered at headquarters or other parts of the FBI within the Justice Department. But the usual candidates for gathering information will be the CIA, Department of Defense, other aspects of defense, the National Security Agency," Radsan says.
Defense lawyer Dan Scott says unlike a regular criminal case, government agencies control most of the information that defense lawyers need. As a result, he says lawyers must trust the government is giving them all they need. He's skeptical about the government's sincerity in turning over classified information that could answer defense questions.
"You'll get a summary of what we think the important part of the answer is. And who will check to see if you're right? We will," Scott says.
Prosecutor Mike Ward says, however, the government must turn over information that would benefit the defense both pre-trial and at trial.
"If the information is material to the defense or helpful to the defense, we have an obligation to disclose that to the court. And the court will tell us whether we have to turn it over or not," Ward says.
There is a twist to Mohammed Warsame's and other terrorist cases in federal court. Even with all of the secrecy and intrigue, it's likely these defendants are only minor suspects.
Prof. Radsan says one can roughly judge the importance of a terrorism suspect based on where the government holds the suspect. It's not in the nation's security interest to try a high-level terrorism suspect in a public trial, or even in the more secretive military setting. Radsan says the U.S. deals with high-level al Qaeda operatives outside the criminal system.
"They're being interrogated in undisclosed locations, perhaps being sent to other countries where they're being interrogated by intelligence services," says Radsan. "So in the Warsame case -- not to diminish the importance of the case to him, the prosecutor, the defense attorney -- but the very fact that it's in federal district court, I don't think he's a high, high level person," Radsan says.
Meanwhile, Mohammed Warsame's case is expected to go to trial this fall at the earliest. Attorneys in the case, however, aren't hopeful. At least one asked to begin trial early 2006.
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