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"Lawyer Up" First, Flip Gently: How Legal Persuasion Works With Terror Suspects

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Flipping witnesses to use against a gang of thugs or a criminal syndicate is something law enforcement in this country has done for a long time. News about the guilty pleas of Najibullah Zazi and his cooperation in ratting out former jihadist associates has arrived on the heels of reports two weeks ago of the same type of cooperation from Captain Underpants, Farouk Abdulmutallab.

Washington Post, Staff Writer Carrie Johnson and Spencer Hsu report:

Zazi agreed to plead guilty to three criminal charges and to share information about confederates overseas......

FBI Deputy Director John S. Pistole told reporters that the Zazi case and intelligence provided by the defendant have "given us all greater insight into the evolving nature of terrorist activities."

"Najibullah Zazi pleads guilty in New York subway bomb plot"

Two weeks ago I blogged on Huff Po ("You Have the Right to Silence and New Underwear: Conservatives Play the Miranda Carnard") about the Miranda warnings given to Abdulmutallab. I included this passage about how law enforcement obtains information through traditional legal and psychological pressures:

For many decades law enforcement agents have questioned arrested persons who were members of vicious street gangs, the Mafia and thousands of other domestic and foreign criminal syndicates. Government investigators are professionally experienced and well trained in using psychological techniques and legal pressure (e.g. a possibly lighter sentence) to obtain statements while adhering to the "reminder-about-your-rights" criminal justice function of the Miranda rules. Hardened criminals more resolute and dangerous than young Abdulmutallab "flip" or "snitch" all the time and provide information for further investigation of their confederates' plans or for use in future prosecutions.
......There simply is no reason to assume that the same tools law enforcement professionals routinely use against other criminal conspirators cannot be deployed effectively by trained American law enforcement professionals in response to future jihadist wannabes such as Abdulmutallab

. Unlike the use of torture -- which is illegal under domestic and international law, frequently unproductive and a political shot-to-the-foot of our national interests in being seen to adhere to the rule of law -- traditional law enforcement tools for eliciting cooperation of suspects have been long considered lawful.

Now that the efficacy of traditional methods to elicit cooperation is being recognized in cases like Abdulmutallah's and Zazi's, one question stands out: Why was the Bush Administration so attracted to, and intently focused upon, the use of brutal methods for obtaining information? One answer may be that Bush Administration lawyers who were "read into" the war on terror planning were insufficiently experienced in, or familiar with, the tools law enforcement and prosecutors can bring to bear on defendants. The legal advisors to the White House had watched too much 24 Hours and not enough Law and Order
Another answer may be that they were so enamored with the rhetoric of war for their self-aggrandizing agendas of revenge (Bush) and enhanced executive power (Chaney), they intentionally overlooked tools traditionally wielded by law enforcement agencies to elicit cooperation. Early on, Bush Administration politicos and lawyers sought more traction by using the war -- and rejecting the crime -- paradigm. This allowed them to put inept criminal wannabes on a pedestal as warriors so that the response by the government would look as if it was being conducted by warriors.

On many occasions Bush appeared to relish referring to himself as a wartime President. Lesser officials who toiled to write legal memoranda for Bush and Cheney are now pointing to the fear of another attack as justification for slanted, Swiss cheese legal analysis supporting the legality of torture, extraordinary rendition and domestic wiretapping without warrants.

Now, conservatives who politicize these issues are banging their war drums against providing government paid lawyers to represent terrorism suspects. Maybe such arguments are just a continuation of the war vs. crime meme. Or, it is possible their contentions continue to be rooted simply in ignorance of the inner workings of the criminal justice system and, in turn, the role of criminal defense lawyers in it. But regardless of what the motivations of conservative critics may be, making their arguments so loudly could cause others to adopt the erroneous, uninformed belief that a lawyer's representation of an arrested suspect hinders -- rather than helps -- the country's fight with terrorists.

Most people outside the criminal justice system (and a few ideologues inside the system) don't understand the complex, multifaceted role played by defense lawyers. Sure, they say, criminal defense lawyers provide professional assistance to the client. But, what they don't acknowledge or possibly understand is that in doing so, defense lawyers foster communication which can facilitate a "win-win" compromise advantageous to the defendant and to the government.

Criminal defense lawyers serve as the exclusive channel of communication between the government and a defendant. The lawyer forms a bond of trust with the client under the protection of the attorney-client privilege. Then a pathway is opened for the lawyer to serve as a conduit in communicating to the client what the government wants. Stripped of case specifics, at some point the message the lawyer takes to the client on behalf of the government is this:

"Here is the deal they are offering you in return for your cooperation. I think it is a good deal, given what may happen if you don't take it. It is fair in that it is similar to how others have been treated. I think you should take the deal and cooperate."

The lawyer's message to the client is powerful and persuasive. The accused typically has no idea how strong the evidence against him might be. The importance of a fingerprint's location, the complex statistical meaning of DNA calculations, the credibility that a jury will see in a friend testifying against the accused -- these are highly technical concepts with which the accused is unfamiliar. The topics concern bodies of knowledge or the kinds of dangers that don't threaten or confront people in most walks of life. It is the defense attorney who explains the "courtroom facts of life" and the client is entirely at the mercy of the defense lawyer's explanation.

Only this one channel for evaluation and communication exists. Unlike medical advice, "second opinions" are rarely a part of criminal defense practice. Even a relative on a phone call from the jail or a cellmate's opinion contrary to the advice of the lawyer can be discredited or devalued by the accused's lawyer: that outsider's two-cents is not the opinion of an experienced, highly trained professional who, it should be noted, has exclusive access to police reports as well as knowledge (and respect) gained from prior professional interactions with the prosecution and the judge.

The accused has no way to know whether the lawyer might be unduly pessimistic or is not well informed. In a serious case with years in prison or even death as one of the outcomes for the client, undue optimism is seldom a concern. The defense lawyer is the quintessential messenger who often carries bad news, bringing to the accused a credible viewpoint about the improbability of an acquittal following months or years of pretrial anxiety in jail.

The defense lawyer provides a comparative view of the treatment being accorded the accused. The lawyer may tell the accused that the deal offered is better than that given to others; or equal to that for others who were similarly situated. From that assessment, the client may feel mollified in knowing that he is being treated equally. And for many from the lower socio-economic rungs of society, equal treatment is welcomed as an acceptable subset of fair treatment.

Frequently, parents, spouses and friends also counsel cooperation so that the embarrassment of a high publicity trial can be avoided and the possibility of a more severe penalty after trial is reduced. Based on news reports of Abdulmutallab's father being flown by the government to the U.S. from Nigeria, this factor appears to have played a major role in the decision to cooperate in that case. The lawyer for the accused may recommend or help facilitate such a consultation if the client desires it.

Physical pressures (e.g. cold rooms, loud music) and deprivation of food, sleep or creature comforts are circumstances that are not as daunting to suspects from society's lower echelons who are driven, whether for monetary gain or for ideological reasons, to engage in violence. Unlike an accused from society's upper echelons, such conditions are more familiar than intimidating. Proving personal toughness and the ability to withstand physical and verbal intimidation is something poor terror recruits have sometimes done for years while enduring life in the rough and tumble environment of a ghetto or violent family culture.

Applying physical and emotional pressures to some suspects will, at best, cause them to withdraw into a psychological fetal position of denial. And at worst, it will result in the suspect shouting defiant curses at interrogators, sometimes borne of the frustration of facing complex decisions for which - without the guiding hand of counsel -- the suspect has no help in understanding or thinking through.

In some regards then, while working for a client the criminal defense lawyer produces an advantageous by-product for the government: by conveying to the client an accurate picture of the legal peril at trial and sentencing, by assuring that the client is being treated with comparative fairness, and by guiding the accused to a position that helps the government obtain the suspect's cooperation in return for reducing the potential harms that can befall the client.

Why conservatives on the right of the political spectrum would want to deny an accused the services of a lawyer is puzzling, when doing so can remove the lubricant for the criminal justice process lawyers are trained to supply. It has become clear that the Obama-Holder Law and Order approach of flipping the "lawyered up" defendant into a cooperating witness is superior to the Bush-Ashcroft-Gonzalez 24 Hours approach. The former has worked for many decades with more obdurate subjects than those like Abdulmutallab and Zazi; and the rejection of such an approach in the memos of so many of the Bush Administration lawyers and advisors is both hard to understand and impossible to defend.