Harris: Patrick Fitzgerald offers lesson on complexities of terrorism law

Former U.S. attorney, colleague take students 'into the sausage factory'

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Complex. Even messy.

That's the reality of prosecuting terrorism cases, former U.S. Attorney Patrick Fitzgerald told his University of Chicago law school students at the outset of a recent class he taught with law firm colleague Michael Scudder.

The two partners at Skadden, Arps, Slate, Meagher & Flom posed multiple hypotheticals — often combinations of real-life cases they had tried or overseen — to show that the reality of prosecuting terrorists is far less tidy than press conferences suggest.

Say there has been a bombing. A citizen reports that his neighbor, who holds extreme political views, previously said he was going to blow up something. The witness didn't take him seriously. But now there has been an attack as described, and the witness reports that the neighbor is scheduled to fly to Pakistan the next day. Is that one unverified tip enough to detain the neighbor at the airport?

What if an alleged terrorist is turned over to U.S. authorities from a country with a deplorable human rights record, and there is evidence the suspect has been tortured? On a flight to the United States, during a 12-hour interrogation, he confesses to his involvement in an attack without being read his Miranda rights. A separate team of FBI agents arrives the next day. Only then is the suspect read his Miranda rights, and he talks for four hours. Is that statement admissible at trial?

"It's unlike a bank robbery where someone comes in and says we caught the guy with an exploding dye pack and now we want to charge the guy with a bank robbery," Fitzgerald told the class of about 30 students. "In these situations, (the charging decision) gets pretty critical … and you will see that the facts keep changing and the statute that seems to perfectly fit won't."

Fitzgerald, 52, is teaching this course because Law School Dean Michael Schill proposed the idea through Fitzgerald's friend James Comey, the former No. 2 official at the Justice Department.

Fitzgerald served as U.S. attorney in Chicago for 11 years, during which time he oversaw the prosecutions of two former Illinois governors, Rod Blagojevich and George Ryan. But Fitzgerald built his reputation in New York, where he prosecuted terrorists almost exclusively from 1994 to 2001.

After stepping down as U.S. attorney, Fitzgerald wanted to teach national security law, the area he felt the public least understood. He broached the possibility during job negotiations with Skadden's Brian Duwe, who leads the firm's Chicago office. Fitzgerald asked Scudder to co-teach the course because of his deep experience in Washington and to provide flexibility, should Fitzgerald be called out of town for work. Scudder also is a former federal prosecutor and friend.

"The issues we have chosen to cover in the class are not easy issues," said Scudder, 42, who was general counsel to the National Security Council in the George W. Bush administration and clerked for U.S. Supreme Court Justice Anthony Kennedy. "They're issues that the country has struggled considerably with after 9/11. One of the things Pat and I really committed to was conveying both sides of the debate and the need to provide advice on them in real time when the answer book is just one shade of gray or another. The goal isn't to advance one particular point of view."

Still, each had his own priorities. Fitzgerald wanted to highlight the Miranda warning and criticize those who advise doing everything to avoid reading them. Scudder, meanwhile, wanted to "hammer home" the debate over whether captured terrorists should be prosecuted before military commissions. Scudder helped structure that process while working at the White House.

"In national security there are few easy questions," Fitzgerald said. "What I find frustrating is that people ask loaded questions that may predetermine answers. Are you in favor of security? Do you respect civil liberties? How could you not care about people's civil liberties? Or why would you not be alarmed about putting people's lives in danger? People don't tend to ask the straightforward question. Here's a messy fact pattern. You have to do something. What do you do?"

Fitzgerald and Scudder wore suits to the 4 p.m. Wednesday class in a basement-level seminar room lined with books from the collection of Clarence Darrow, the famed attorney and civil liberties advocate.

Fitzgerald, who grew up in New York City, spoke at a breakneck pace compared with Scudder, who grew up in Fort Wayne, Ind. They shared both legal theories and tactics with the class.

If Fitzgerald couldn't charge a specific terrorism act, he would consider the charge of conspiracy, known as "the prosecutor's darling," although it carried only a five-year penalty at the time. Or he would consider a perjury charge, which is what Fitzgerald initially used to prosecute Wadih El-Hage, once Osama bin Laden's personal secretary, after the U.S. Embassy bombings in Africa in 1998. Contempt might work. Or even the charge of soliciting someone to commit a crime.

"I remember one particular case where we had overwhelming evidence this guy was a bad, bad terrorist," Fitzgerald told the class. "All of which was classified, and we were told under no circumstances could we use it. Now what do you charge him with?"

Fitzgerald omitted the defendant's name — and no student asked him to reveal it. When I later asked, he declined to supply it. Fitzgerald was ever careful not to name names, leaving one to wonder how much reality was inserted into every hypothetical.

"Suppose … you happen to read classified information that shows a terrorist group you're investigating has been raided in two or three countries, and people have been arrested," Fitzgerald posed. "And they said to those folks, 'Who do you know who belongs to that terrorist group in America?' And what if they give three names and the person you're investigating is not on that list. … If you charge this person with being a member of this terrorist group, the fact that those witnesses didn't name that person may well need to be turned over to the defense."

This is called Brady material. The defendant is entitled to review any evidence collected that might prove his innocence.

Fitzgerald said that when he attended law school, practicing law seemed much like performing surgery. Lawyers, like surgeons, followed a series of steps "and everything seemed to make sense and flow."

He has since learned that prosecuting terrorism cases is akin to operating in a MASH unit.

"We sort of wanted to bring the students into the sausage factory," Fitzgerald said.

Melissa Harris can be reached at mmharris@tribune.com or 312-222-4582.

Twitter @chiconfidential

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