After the initial spate of chest-beating, we hadn’t heard much from the Justice Department about the case of would-be Times Square bomber Faisal Shahzad and the many ways it illustrates how splendidly the criminal justice system performs in terrorism cases — even the cases of enemy combatants who could otherwise be held indefinitely and interrogated for intelligence purposes.
Now comes word from the U.S. attorney’s office for the Southern District of New York that Shahzad has been indicted. He is charged with ten terrorism counts, ranging from bombing and terrorism conspiracies to the transportation and attempted use of a weapon of mass destruction. This is a strange development.
Attorney General Eric Holder has been telling anyone who would listen that Shahzad is cooperating and providing valuable information. Civilian due process has been no obstacle at all, Holder insists: no problem posed by Miranda, the appointment of counsel, the prospect of providing discovery, and the dynamics of plea-bargaining. Yet it is highly unusual to indict a cooperator, precisely because it is so strategically disadvantageous to the government. When someone is cooperating, the standard practice is to strike a deal, complete with a cooperation agreement and a guilty plea, in what is known as a “criminal information,” rather than to file an indictment.
It usually works this way: Once the cooperator has given the Justice Department and the investigators the broad outline of his criminal culpability, and once the government is satisfied that the cooperator is being candid and not holding anything back, the prosecutors and defense counsel agree to a set of charges to which the cooperator will plead guilty. Both sides sign a cooperation agreement. This is a contract, requiring the cooperator to continue providing truthful information in exchange for the government’s commitment to file a cooperation motion. That motion enables, but does not require, the sentencing judge to impose a lenient term of incarceration — i.e., less time than the cooperator would get (life imprisonment in this case, almost certainly) if he weren’t spilling the beans.
A prosecutor indicts people only if he thinks he may have to go to trial against them. Getting an indictment requires putting witnesses before the grand jury and eliciting testimony that is likely to be the subject of defense-counsel scrutiny down the road. You don’t do that if you can avoid it. That’s why cooperating defendants are asked to waive indictment and plead guilty in an information. An information is a charging instrument brought in the name of the U.S. attorney, not the grand jury. It doesn’t subject prosecutors to the burdens and headaches of presenting evidence and testimony.
Usually, the prosecutor and a cooperator’s lawyer also collaborate on an “allocution.” This is a statement by the cooperating defendant given during a guilty-plea hearing, in which the judge asks the defendant to explain in his own words what he did that makes him guilty. The allocution is carefully scripted, because it is anticipated that a cooperating defendant may one day be a witness against other conspirators. The lawyers for these other culprits will be able to use the allocution in cross examination, so the government wants to make sure the cooperator has admitted everything he should admit and implicated everyone he is in a position to implicate. Any omissions could critically damage cases that are based on the cooperator’s testimony.
Filing an information suggests that there’s significant cooperation. An indictment, on the other hand, is the throwdown moment in a criminal case, the opening bell for the first round of a prize fight. It signals that the parties have been unable to work out an agreement and are in an antagonistic posture.
The indictment doesn’t mean that a guilty plea cannot be worked out at some later point. What it probably does mean is that Shahzad’s relationship with the government is on the rocks. We don’t know exactly why this is so, but we can hazard an educated guess: Despite Holder’s protestations to the contrary, immediately bringing a person into the civilian criminal-justice system, with its rigorous due-process rules, is fraught with complications that make it very difficult for the government to gather intelligence without interruption.
Once you arrest a person in the civilian system, he gets a lawyer. That lawyer’s job is not to cooperate with the government. To the contrary, his job is to make the government live up to its burden of proof, to give the defendant the same expertise in manipulating the legal system the government has. A competent defense lawyer strikes a plea deal with the government only after exhaustively studying the case, pressing the government for every possible concession, and deciding that a guilty plea — rather than indictment and trial — is in the defendant’s best interests.
In Shahzad’s case, the government wants intelligence. It wants both to protect national security and to obtain a conviction. Those goals are often in conflict, but that’s not the defense lawyer’s problem. His job is to get the best possible result for his client, which usually means exploiting the government’s problems, not solving them.
Shahzad’s lawyer knows Holder is deeply invested in showing that the criminal-justice system can handle terrorism cases just as well as, or better than, any military system. Counsel also knows (a) that Holder defines success by whether the Justice Department gets a conviction (not by how much valuable intelligence the government obtains), and (b) that Holder has shown a willingness to plead cases on the cheap in order to get a conviction (see, e.g., the case of Ali al-Marri, an al-Qaeda terrorist who was allowed to plead guilty to a relatively minor charge, which resulted in a sentence that renders him eligible for release in about six years).
The government desperately wants Shahzad’s cooperation and his conviction, but hanging tough is cost-free for the defendant at this point. If the government expects him to accept life imprisonment, his lawyer will figure: “We might as well go to trial.” Prosecutors are no doubt telling Shahzad that, if he continues cooperating, the sentencing judge may cut him a break down the road. But defense counsel knows Shahzad will never have as much leverage as he does now. He doesn’t want a speculative possibility of leniency; he wants something concrete, and he wants it up front. He wants a ceiling on the amount of prison time he will have to do — just like al-Marri got.
Of course, the attorney general will not want to give this to him. Shahzad tried to kill hundreds of people. If he were to get a deal that capped his sentence at, say, 20 years, with the possibility of an additional shave by the sentencing judge at some future date, the public would go ballistic. Nevertheless, defense counsel knows that if there is no plea deal, then the discovery rules kick in. Now that he has been indicted, Shahzad will be able to demand of the government all the information in the government’s files that could be material to preparing his defense.
Think that could be a problem? You bet it could. To cite only the most obvious concern, the indictment alleges that Shahzad conspired with and was trained by the Pakistani Taliban. Any good defense lawyer is now going to demand all the sensitive intelligence in the government’s possession about that organization: What has the Pakistani intelligence service told U.S. authorities about the Taliban? If the Taliban is really in a terrorist conspiracy to attack New York City, why hasn’t the State Department ever designated it a terrorist organization?
#pageAnd what about witnesses? When, counsel will demand, will Shahzad be given access to the Taliban prisoners in the custody of Pakistan and the U.S. military, prisoners who may have provided information that Pakistan shared with the United States? After all, the government says it has a very effective working relationship with Pakistan and its intelligence agency, right? They even coordinated on this case, right? So, surely, the Obama Justice Department can lean on Pakistan to cough up all its intelligence files and informants, right? Oh, and by the way, the press keeps saying that parts of that rascally Pakistani intelligence service are actually in cahoots with the Taliban — could you show us your files on that, too?
Those are just the most obvious complications a Shahzad trial could pose for the U.S. war effort . The demands defendants make for mountains of information from government files always grow even larger once lawyers start looking at the first tranches of discovery.
And here’s the kicker: It’s all about tactics. Most of the information Shahzad will demand won’t really help his case at all. He will demand it because he knows the government will not want to disclose it. If the government refuses to turn it over, that could induce the trial judge to start striking parts of the government’s case, as happened in the Zacarias Moussaoui circus in federal court a few years back. DOJ resistance could create appellate issues that would put a conviction in jeopardy. It could create severe tension between the prosecutors and the trial judge that could hurt the government’s case in various other ways (again, see Moussaoui’s trial).
None of this had to happen. Shahzad could have been held as an enemy combatant and interrogated without counsel. In al-Marri’s case, and in the case of Jose Padilla, the government detained enemy combatants for years before turning them over to the criminal-justice system for trial. The statute of limitations on bombing attempts gives the government plenty of leeway to delay charging a defendant for years if there are good reasons for delay — and war is a better reason than any.
When you detain a war criminal without counsel, he is more apt to tell you much of what he knows. Those statements probably won’t be admissible at trial, but they may not be necessary to secure a conviction; in any event, it’s more important to the war effort to get the intelligence. By contrast, when you bring a war criminal into the civilian criminal-justice system while the war is ongoing, you empower him — with lawyers, with investigators, with discovery rights, with subpoena power, and with the complex dynamics of plea negotiations.
Rife with lawyers who spent the last several years volunteering their services to terrorists and deriding the Bush/Cheney law-of-war approach to counterterrorism, the Obama administration chose to empower Faisal Shahzad. Top officials at the White House, the Justice Department, the intelligence community, and the military evidently convinced themselves that doing so would be cost-free. They may soon learn the hard way that it is not.
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.