For Justice System, 9/11 Aftershocks

Edgar Morales didn’t belong to Al Qaeda, Ansar al-Islam or any of the 40 other organizations on the U.S. State Department’s list of foreign terrorist organizations. He belonged to the St. James Boys, a violent street gang that prosecutors said considered itself “kings of the Bronx.” It was a killing that landed Morales before a Bronx jury last year. But it was the reaction to September 11 that earned Morales extra prison time when he was convicted and sentenced.

Morales, 26, was the first person charged with murder “as a terrorist act” under one of several additions to state law passed in the aftermath of the attacks on the twin towers. (Other additions to the state’s penal code include “soliciting or providing support for terrorism,” “making terrorist threats” and “hindering prosecution of terrorism.” Prosecutions for those lesser offenses, while still rare, are on the rise statewide—from eight in 2003 to 43 in 2007).

The jury found that Morales was involved in a shooting outside a baptism party in August 2002 in which one man was paralyzed and a 10-year-old girl was killed. He was found guilty of manslaughter, attempted murder, conspiracy and possession of a weapon. Because those were found to be “crimes of terrorism,” his sentences were enhanced. Rather than a 25-year maximum each for manslaughter and attempted murder, Morales is serving consecutive 20-to-life sentences.

“The obvious need for this statute is to protect society against acts of political terror,” the Bronx district attorney, Robert Johnson, has said. “However, the terror perpetrated by organized gangs, which all too often occurs on the streets of New York, also fits squarely within the scope of this statute.” Johnson’s office pointed to a string of incidents blamed on Morales’ gang—shooting into a crowd during incidents in 2001 and 2004, assaulting and severely injuring a man in late 2001, and shooting a boy in the face in 2002—and argued they “constituted overt acts by the gang, which proved the existence of a conspiracy to terrorize an entire community.”

Associates of violent street gangs rarely garner public sympathy when they get long prison terms. But in Morales’ case, it’s the process that’s been questioned. His lawyer and others have asked whether charging a street thug with a crime intended to apply to the likes of Mohamed Atta distorts the criminal justice system. When told that the defendant is not just a killer but a terrorist, “I think it’s very tough for the average juror not to somehow skew things in favor of the prosecution,” says Dino Lombardi, the lawyer representing Morales, who is appealing his conviction. “It basically has the danger of being overbroad in its reach because you can basically string together any group of crimes that are committed by the same group of individuals and call it a terrorist act.”

Asked whether he’d prosecute other gang members as terrorists, Johnson replies in a statement: “This was a very specific fact pattern. But if future facts fit the statute, we’ll use it.” As for the notion that mere mention of the word “terrorist” might bias the jury, the DA notes that, “Any criminal charge has that potential. But the jurors are given instruction by the judge on what they may consider.”

The justice system has changed since (if not necessarily because of) September 11 in myriad other ways. New York State now collects DNA from a broader swath of convicted criminals than it used to, including people found guilty of second-degree criminal trespass and misdemeanor larceny. Mayor Bloomberg is currently pushing to take DNA samples from all people who are arrested. Meanwhile, the NYPD is stopping and frisking a very large number of New Yorkers—469,000 in 2007. In the first quarter of 2008, police listed “furtive movements”—rather than a reason like “fits a relevant description”—as the justification for 44 percent of their stops.

The Constitution’s Sixth Amendment holds that an accused person is supposed to be “confronted with the witnesses against him” and have “the assistance of counsel for his defense.” Since September 11, federal courts in New York and elsewhere have increasingly altered the attorney-client relationship with “special administrative measures,” or SAMs, and through the use of secret evidence have in many cases circumscribed the right of the accused to see the evidence against them. SAMs restrict a defendant’s communication—anything from letter writing to visits to talking with the media. They were introduced by the Clinton administration in 1996 under the justification that jailed terrorist leaders had to be prevented from issuing order to their followers. In 2005, defense lawyer Lynne Stewart was found guilty of terrorist activity for violating SAMs imposed on her client, Sheik Omar Abdel Rahman, who is serving a life sentence in connection with several terrorist plots. In June 2000, Stewart issued a press release in which Rahman, at the very least, hedged his support for a cease-fire between his followers in Egypt and the Egyptian government. Stewart was sentenced to 28 months in prison but is appealing, arguing that the SAMs violated her first Amendment rights.

SAMs are also an issue in the case of Syed Hashmi, a U.S. citizen of Pakistani origin who grew up in Queens and attended Brooklyn College before moving to London, where he was arrested in 2006 for providing material support to terrorism. Prosecutors say Hashmi allowed a friend who was carrying gear for Al Qaeda to stay in his London flat and use Hashmi’s cell phone to contact other militants. The gear reportedly included night-vision goggles, ponchos and waterproof socks. Hashmi was extradited to the United States last May—the first time Britain had extradited a terrorism suspect here. As Hashmi arrived, Police Commissioner Kelly said, “This arrest reinforces the fact that a terrorist may have roots in Queens and still betray us. Congratulations to the New York City detectives and FBI agents who understood this and kept Hashmi on our radar.”

Hashmi was a member of Al Muhajiroun, a group that has been active in London and New York City. The group refers to the September 11 hijackers as “the magnificent 19,” and its founder has boasted of sending young men to terrorist-training camps. It was banned in Britain in 2005 but is not listed as a foreign terrorist organization by the United States because it has never been conclusively linked to a violent act.

Saying that Hashmi’s communications “could result in death or serious bodily injury to others,” the prosecutor imposed measures to prevent him from getting messages out of his cell in the Metropolitan Correctional Center in Manhattan. Under those measures, prison officials decide if he has “contact” or “noncontact” visits with his lawyers and can record his conversations with people in adjoining cells. Also, Hashmi—who faces 50 years in prison if convicted on all charges—can’t talk with or meet members of his lawyer’s staff unless his lawyer is present and can’t use a translator that the government hasn’t cleared. Hashmi’s lawyers have argued that these measures make for harsh pre-trial detention and a harder time defending their client—who is, after all, presumed innocent

Because secret evidence might come into play, Hashmi’s lawyer had to undergo a background check to obtain top secret clearance. But if earlier terrorism trials are any guide, Hashmi’s legal team still might not be shown some evidence. According to the Center for Law and Security at NYU, at least 22 of the 63 federal terrorism cases since September 11 have used evidence that the defendant, and perhaps his lawyer, could not see. “Tell me, how is a defense attorney supposed to defend someone against evidence you can’t see and you can’t show your client?” asks Sean Maher, one of Hashmi’s attorneys.

The use of secret evidence is separate from another controversial tactic: the government’s use of the “state secrets” privilege to dismiss lawsuits against the United States on the argument that the suits might expose national security information—something the Bush administration has done in several high-profile cases.

Until the Supreme Court’s ruling last month, detainees at Guantánamo Bay weren’t receiving trials at all but military tribunals that lack many of the protections defendants normally enjoy in court. Several New York lawyers and firms have taken on those detainees’ cases. Last year, a Pentagon official suggested that corporations avoid hiring firms that represent Guantánamo prisoners. He later apologized and resigned.