Alumni views
Duke Law graduates are well represented in all areas of public and national security law and in all branches of government. Here, six alumni share their experiences in, and reflections on, the post-9/11 legal world.
Larry Shelton ’74 And Fran Pratt ’93
In the fall of 2001, Larry Shelton
’74, a former assistant United States attorney, left private practice after almost 15 years to establish the office of the Federal Public Defender in Norfolk, Virginia. He did so at the
request of his friend and colleague, Frank Dunham, the first federal public defender for the Eastern District of Virginia in Alexandria. In April 2002, the two learned that a detainee from
Guantanamo Bay, Cuba, was found to be an American citizen and transferred to the naval brig in Norfolk. They challenged Yaser Hamdi’s detention; he was released from military custody last
summer, after the United States Supreme Court ruled, in June 2004, that he had the right to a detention hearing. Fran Pratt ’93, appellate counsel in the Federal Public Defender’s
office in Alexandria, became involved in Hamdi’s case when the government appealed the decision of U.S. District Court Judge Robert Doumar to the Fourth Circuit.
Shelton: Frank Dunham and I thought Hamdi’s detention in Norfolk was odd. John Walker Lindh had just been indicted, and Hamdi was captured in the same location in Afghanistan; we assumed that Hamdi would be indicted under the same circumstances as Lindh. At Frank’s request I called the brig commander to arrange a meeting with Hamdi and got no response. I followed up with a letter saying my office considered Hamdi to be our client and he should not be interrogated without a lawyer, because we wanted to make sure that anything he said in response to his interrogation could not be used against him in any criminal trial. We got the reply that the commander would have to call his superior officer.
In early May we filed a petition for a writ of habeas corpus in Norfolk federal trial court. The writ named Frank as next friend. [Another writ was filed by a petitioner from New Jersey who did not have any connection to Hamdi. The two petitions for habeas were consolidated and on May 29th, the court ordered the military to allow a member of the Federal Public Defender’s office to meet with Hamdi no later than June 1.]
We knew we were up against high-level opposition when the United States Solicitor General’s office–as opposed to the U.S. Attorney’s office–immediately filed a motion in the U.S. Court of Appeals for the Fourth Circuit asking that the judge’s order be stayed.
Pratt: The Fourth Circuit gave us 24 hours to file our response brief, which did not follow the usual procedures at all; that is more typical of a death penalty case.
“[Hamdi] was an example of the legal system working the way you think it should when you go to law school. It makes me feel that the Constitution is alive in our system, and we did our part to make sure it stays alive.” Larry Shelton ’74
Shelton: When it became apparent at the oral argument that the Fourth Circuit would “kick” Judge Doumar’s order back to him, because Frank Dunham was not a proper next friend, we reached Hamdi’s father in Saudi Arabia and had him prepare an affidavit applying to be Hamdi’s next friend. We filed a new habeas petition on June 10th with Hamdi’s father as next friend. The new petition was consolidated with the first and the federal public defender was appointed to represent Hamdi. That was the smartest thing we did; we could have been out of court had we not done that. It was crucial.
Hamdi’s was the first case in some 20 years in which I heard a judge say to the lawyers involved that the quality of work was just excellent. This case could have been lost at any point down the line, but for two years, we didn’t make any mistakes.
I had expected the government to release Hamdi to moot the case before it got to the Supreme Court. I think the government made a huge mistake in failing to do so. Once we got there, I knew we had a huge chance of winning.
This was an example of the legal system working the way you think it should when you go to law school. It makes me feel that the Constitution is alive in our system, and we did our part to make sure it stays alive.
Pratt: It was incredibly exciting to be a part of making history. The Supreme Court ruling on Hamdi’s right to a hearing regarding his detention was effectively an 8—1 decision.
Speaking on a very general level, the post 9/11 world has, in many ways, increased my passion for what I do. Perhaps with the USA PATRIOT ACT (the “Patriot Act”) and the war on terror, there’s the potential for abuse–as well as actual abuse. By way of example, there was a lawyer in Portland who was implicated in the Madrid train bombing based on faulty intelligence. In some cases, there is a rush to judgment; [law enforcement officials] may be so eager to “get somebody” quickly that they do shoddy work.
The role of the defense lawyer as defender of the Constitution makes it even more important to have zealous defenders.
Michael Elston ’94
Michael Elston ’94 is an assistant U.S. attorney for
the Eastern District of Virginia and co-chief of the Criminal Appeals Section. Having been assigned to the Department of Justice’s Office of Legal Policy at the time of the 9/11 attacks, on
September 12, 2001, Elston found himself working on draft anti-terrorism legislation, which subsequently became the USA PATRIOT Act (the “Patriot Act”). He has been involved in the
prosecutions both of John Walker Lindh, who is now serving a 20-year sentence in federal prison, having fought with the Taliban in Afghanistan, and Zacharias Massaoui (specifically on attempts by
the media to gain access to sealed documents in the case and issues relating to the use of classified documents) as well as other terrorism-related investigations. Elston is also on the task force
created by the attorney general to investigate allegations of detainee abuse by civilians in Afghanistan and Iraq. Because the Eastern District of Virginia is home to the Pentagon, as well as many
other government agencies, the office is central to what Elston calls “the lawyers’ war on terrorism.”
Before 9/11, federal prosecutors primarily dealt with drug and gun offenses, bank robberies, and white-collar crime. Things changed a great deal on that day. The federal government reassigned substantial law enforcement resources to anti-terrorism initiatives. We had a significant drop-off in the non-terror work after 9/11, because so many federal law enforcement officers were pulled into the 9/11 and other terrorism-related investigations. The word came down: “Don’t let this happen again.”
Now resources have been added so that both areas can be pursued with energy: anti-terrorism efforts and regular criminal cases.
Whenever laws are changed to give law enforcement new tools, as occurred with passage of the Patriot Act, there is an accompanying concern about the potential for abuse of those tools. And rightly so. Our country’s strength depends on, and has always depended on, our ability to have fully informed, free and open debates on these issues. The Patriot Act debate, however, has too often been marked by uninformed debate.
What was particularly disappointing to me about the on-going debate is the assumption that the Justice Department would misuse or abuse these new tools. In my experience, the federal law enforcement community is full of hard working, honest people with integrity, who believe passionately in the Bill of Rights. I am confident that we will reach the right balance between what we need to do to keep the country safe and what we need to do to protect our constitutional rights. In the course of public debate over the “sunset clauses” of the Patriot Act, statistics will come out as to how current investigative powers are used and any alleged abuses of those powers. I don’t think there will be many actual examples of abuse. Frankly, those of us in law enforcement simply have so much work to do that we don’t have time snoop through the records of law-abiding citizens. In fact, Senator Dianne Feinstein, a California Democrat, stated during a Senate hearing two years after the law went into effect that she had “never had a single abuse of the Patriot Act reported to me. My staff e-mailed the A.C.L.U. and asked them for instances of actual abuses. They e-mailed back and said they had none.”
I also believe that a lot of the angst stems not so much from the Patriot Act, but from a lack of awareness as to what the powers available to law enforcement were before 9/11. For example, law enforcement has always been able to use subpoenas to access such things as bank records and obtain court orders to install wiretaps. The Patriot Act just provides new ways for law enforcement to get that information in terrorism investigations, and to get some information faster, such as searches of e-mail accounts. Speed is crucial in national security investigations.
Domestically, we have to stop [terrorists] before they act. We have to focus on stopping the people who commit and support criminal acts in advance. That may involve aggressively enforcing immigration laws, federal firearms and explosives laws, as well as bringing terrorism-specific charges in appropriate cases. Prosecuting people attempting to enter the country illegally, prosecuting identity theft, and undermining the ability of terrorist organizations to freely use our financial system to support their activities, for example, makes it harder for terrorists to achieve their objectives. That’s our number one goal.
Dana Lesemann ’91
Dana Lesemann ’91 was working in the Office of
Intelligence Policy and Review in the U.S. Department of Justice on 9/11. In OIPR, she represented the United States before the Foreign Intelligence Surveillance Court, handling FBI requests for
electronic surveillance or search warrants for the purpose of “foreign intelligence.” (That standard was amended by the USA PATRIOT ACT [the “Patriot Act”], notes Lesemann;
now foreign intelligence must be a “significant purpose” of the request.) In February 2002, Lesemann was detailed to the Joint Congressional Inquiry into 9/11. She is now vice president
and deputy general counsel for Stroz Friedberg, a consulting and professional services firm in Washington, D.C.
After 9/11 there was an extraordinary sense of obligation at OIPR. We were working long hours–12-hour shifts six days a week. With each application for a FISA warrant we were keenly aware of the balance that needed to be struck between keeping the country safe, on one hand, and protecting the rule of law on the other. An application under FISA is highly intrusive; the subject will never know about the warrant unless she is arrested and charged with a crime and the evidence from that FISA [warrant] is used against her. So you are trying to protect people’s privacy and make sure the government follows the rule of law. We had an influx of FBI agents who had never dealt with FISA before, and constantly had to remind them that in order to obtain a warrant, we had to show that the subject was an agent of a foreign power; it was not enough to show that the person was involved in a criminal act.
I worked on FISA applications basically non-stop until I was detailed to the Congressional Investigation of 9/11 in March of 2002. Working with the Joint Inquiry was a fabulous experience, and I worked with a highly talented group of people. My team looked into the FBI Counterterrorism Division, and figured out that there was an informant who lived with the 9/11 hijackers that the FBI didn’t know about before 9/11, and hadn’t told us about once the investigation started. The Joint Inquiry produced a number of recommendations that were recently enacted, including the creation of a director of national intelligence, although we differed from the later 9/11 Commission in that we focused specifically on congressional oversight of the intelligence process.
What I learned about international terrorism in the U.S. from my work at the Department of Justice and on the Joint Inquiry is that it’s like picking up a rock: There is a lot going on underneath the surface that no one ever sees. And, as we know from the Joint Inquiry, the FBI does not have a good handle on the domestic support network for international terrorists in the U.S. The 9/11 terrorists got their support in mosques and other places. Whether it was witting, or the result of willful blindness is unclear. But they got a lot of support along the way, and the FBI was not aware of it.
I would like to hear a clear, rational discussion about the balance between national security and the protection of civil liberties, and I don’t think that’s happening. On one hand, you have [former U.S. Attorney General John] Ashcroft saying “Those who criticize the Patriot Act do nothing but aid our enemies.” On the other, we have the American Civil Liberties Union complaining about parts of the Patriot Act that codified “sneak and peek” [warrants allowing searches without the subject’s prior knowledge] without acknowledging that, before the Patriot Act, search warrants were sought and granted with delayed notification to the target on a case-by-case basis. There is a good argument for codifying the standards under which that practice was done.
I do think there are some issues with the Patriot Act. For example, Congress recently passed the “lone wolf” provision, which removes the requirement that the government show that a non-U.S. person is an agent of a foreign power in order to obtain a search warrant or wiretap under FISA. This amendment may very well be unconstitutional because it removes the foreign intelligence connection that was the basis for FISA. Also, many people seem to believe that the Moussaoui case showed that we need a “lone wolf” provision, but, in fact, what the Moussaoui case showed was that we need better training about FISA in the FBI. The FBI lawyers handling the Moussaoui investigation believed that they couldn’t name Moussaoui as an agent of Chechen rebels because the rebels weren’t a “recognized” international terrorist group, so they wasted valuable time trying to tie the Chechen rebels to al-Qaeda, which the lawyers considered to be a “recognized” foreign power. In fact, the Chechen rebels were also a foreign power under FISA. Thus, the whole notion that the Moussaoui case establishes a need for a “lone wolf” provision is based on a misunderstanding of the facts of the case. We need to have a rational discourse on these issues based on the facts. Terrorism is a reality. Respecting our civil rights is a basic element of our society. Maintaining the balance between national security and protection of civil liberties is crucial.
Scott Allan ’99
Scott Allan ’99 became a counsel to the 9/11 Commission
in March 2003, just as it was getting underway. He had previously worked as special counsel to Ambassador Richard Holbrooke, the former U.S. ambassador to the United Nations. Prior to that Allan
practiced law with Thatcher Proffitt & Wood, transferring from its New York offices in Tower Two of the World Trade Center to its Washington, D.C. office just a week prior to the attacks. Allan
now works as the foreign policy advisor to the U.S.-China Economic & Security Review Commission.
My portfolio with the 9/11 Commission focused on terrorist sanctuaries, such as Afghanistan and Sudan, and also Washington’s diplomatic efforts with Pakistan and the Taliban– basically how Washington tried to get them to address the terrorist threat emanating from South Asia before 9/11.
One experience that stands out is how difficult it was for Washington to transition from the Cold War threat to a very different threat, and the challenges that posed. In the Cold War, for the most part, we understood and could monitor the enemy. But with al-Qaeda that was not the case–and still isn’t–as their leadership and operational cells are very difficult to penetrate.
While it is imperative to strike against the violent actors in the short term, in the long term we have to win over the young–we have to promote a positive American image in the Muslim world. While we may be succeeding at the former, I think we are failing miserably at the later. Winning this thing takes long-term dedication, and settling for “quick fixes” can often be counterproductive.
The Pew Charitable Trust surveyed attitudes towards the U.S. in “moderate” Muslim states, and it was shocking to see how the opinion towards the U.S. had plummeted. The results from traditional U.S. supporters–such as Morocco and Turkey–are very disturbing. In my work with the 9/11 Commission, I constantly emphasized the need to turn this around and get a positive message out.
American attention and focus has to remain on the long-term threat. We may go for periods without attacks, but we still need to keep an eye on places that could become sanctuaries for terrorists. Before 9/11, Afghanistan wasn’t high on our radar. Now we shouldn’t lose sight of other areas, such as West Africa and Indonesia.
Dylan Cors ’97
Since last September, Dylan Cors ’97 has been working for
the Commission on the Intelligence Capabilities of the United States regarding Weapons of Mass Destruction (“the WMD Commission”) charged by President Bush in February 2004 with the
task of assessing whether the intelligence community has adequate capability to address threats by foreign powers, including terrorists, terrorist organizations, and private networks. Having worked
in the international practice groups of two Washington D.C. law firms after his graduation from Duke Law School, Cors joined the Central Intelligence Agency in April 2002. He was detailed to the
National Security Council in August 2003, as special counsel for the 9/11 Commission.
A core issue that continues to face the country, both for policy-makers and for lawyers, is how we approach and respond to threats by terrorists. Terrorist groups are clearly non-state actors, but the 9/11 attacks proved that we must sometimes act directly against them. Should we treat them using the rules applicable to foreign powers or states, or should we act as if they were something else? Right now, the only “something else” is to treat them as criminals. That’s probably not enough–it isn’t fast enough, and isn’t practical when it requires international cooperation that isn’t available. So are they “foreign powers”? They don’t meet the criteria, or play by the rules, that have guided foreign relations for 400 years. Do we need a new paradigm? We’re getting there–one that involves new cooperative arrangements with foreign states, the sharing of intelligence, etc. How can our intelligence community expand its partnerships without compromising security?
In the simplest terms, what 9/11 taught us is that we cannot ever tolerate or allow a haven for terrorists–a base for terrorist schooling and training–to take hold. We can’t allow one to grow like it did in Afghanistan, where a non-state, al-Qaeda, co-opted a state–Taliban-controlled Afghanistan–and used its land for the teaching of hate and destruction. In the long term, the challenge is how to reach some sort of program or structure for ensuring that other countries “buy in” to the idea that this can’t happen. It’s particularly important to work with less developed countries that struggle to govern their own territory.
Public diplomacy is tremendously important, as are other types of international exchanges. We’ll have to create a positive view of what direction the world is heading, and build confidence that the United States is a proponent of basic human values. This will take many decades–you have to work through each country and through the problems that have grown and festered for decades.
We need to watch the many vast, ungoverned expanses of territory around the globe where it would be easy to set up a [terrorist] haven. Examples are in Africa, parts of South America, and in Southeast Asia, such as the Philippines.
Now that Dr. Rice has been confirmed as Secretary of State, she has a big challenge ahead to lead the United States towards further engaging those countries. We need more cooperation than coercion. In the wake of 9/11, we had to take coercive action. Now we need to focus on encouraging cooperation.