Defense of Domestic Terrorism
Being accused of being a “terrorist” or of committing an act of terrorism is so frightening in its implications that an individual and his family may feel that there is simply no way to fight back. With the full weight of the Federal Government coming down on him, an individual accused of terrorism may rightfully wonder if he has any rights at all. He does. But, his attorney must be prepared to battle the government to safeguard those rights. In perhaps no other type of case will a Massachusetts criminal defense lawyer have to work as hard to ensure his client fundamental Due Process and a fair trial.
Cambridge Criminal Lawyer: Defining Terrorism
While the term “domestic terrorism” is widely used and its meaning fairly well understood, it is defined under the Patriot Act (18 U.S.C. § 2331) as activities that:
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended –
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction ofthe United States.
Though this definition appears fairly specific, it can be interpreted quite broadly. Indeed, Federal prosecutors can charge individuals accused of routine criminal acts with domestic terrorism. After all, most criminal acts are “dangerous to human life” and are intended to “intimidate or coerce a civilian population.” Indeed, an aggressive prosecutor could interpret “unpatriotic” activities, such as assembling to exercise the right to protest and to dissent, as sufficiently “intimidating” and “dangerous” to come within the parameters of the Patriot Act. Since Federal prosecutors have historically misused the Racketeer Influenced and Corrupt Organizations Act (RICO Act), a law designed to help law enforcement combat organized crime, to prosecute individuals, businesses and religions with no connection to organized crime, it is only a matter of time before they target non-terrorists for prosecution under the Patriot Act.
Writ of Habeas Corpus
The right of Habeas Corpus, nearly forgotten because of the long accepted tradition in our courts that an individual accused of a crime has the right to appear in court and contest the charges, has been abridged by the Patriot Act. The Writ of Habeas Corpus is a summons requiring the authorities detaining an individual to bring the prisoner before the proper court so that the court can determine whether these authorities have the lawful authority to hold the individual. If this custodian cannot provide sufficient proof that it has a legally recognized authority to detain the individual, the court orders the custodian to release him. Without the Writ of Habeas Corpus, a State or Federal authority could simply take an individual into custody and neither the individual, his family, his attorney, nor the courts would have power to force the authority to bring the individual to court, explain the reasons for his detention, or require his release. Albert Venn Dicey, a British jurist, wrote that the right to Habeas Corpus is “for practical purposes worth a hundred constitutional articles guaranteeing individual liberty.” If not for the right to Habeas Corpus, an individual accused of a crime would have no way to exercise any other rights.
In an affront to the Habeas Corpus doctrine and long-established legal precedent, the Bush Administration argued that it had the power, under the Patriot Act, to indefinitely detain an individual, including U.S. citizens, suspected of terrorist activity without charging him with a crime. The Administration argued that these “enemy combatants,” a term that had previously been used to describe prisoners of war, have no recognizable rights under the Constitution, including access to lawyers. Aside from the rights afforded prisoners of war by the Geneva Convention, prisoners of war have had no legal right to access U.S. civilian courts. By labeling U.S. citizens suspected of terrorist activities as “enemy combatants,” the Bush Administration claimed the power to suspend the right of habeas corpus. It remains to be seen how the Obama Administration interprets its powers under the Patriot Act.
Of the Patriot Act, Congressman David Obey of Wisconsin deadpanned upon its passage, “Why should we care, it’s only the Constitution?”
Kevin J. Mahoney is a Cambridge, Massachusetts criminal defense lawyer.
