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Bail Ruling Likely to Set Legal Precedents

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Lackawanna Six

By Joyce Kryszak

Buffalo, NY – The judge's decision to reopen the bail hearing for six men accused of supporting terrorism added to the mound of evidence in this complicated case. But how U.S. Magistrate H. Kenneth Schroeder ultimately rules on that evidence could also have far reaching impact on liberty for all Americans.

The founding fathers gave us some pretty tough stuff to follow in the Constitution. "We the people of the United States...in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Those are indeed lofty and worthwhile ideals. But do they also create conflicts? Buffalo attorney Denise O'Donnell says the heady decision now before Judge Schroeder underscores the conflicts.

"I think we're talking about principals of constitutional law against a backdrop of great concern in our society for safety in view of September eleventh and the horrible attack on our country," O'Donnell said.

O'Donnell has seen the legal dilemma from both sides. She's now in private practice as a defense attorney, but has also prosecuted cases for the government as the former U.S. attorney for the Western District. Still, the person who has O'Donnell's sympathy in this case is Judge Schroeder.

"He knows he's not only deciding this case right now, but maybe setting a precedent for the future in a number of similar cases," she said.

And that's what has many civil libertarians concerned. At issue are several constitutional questions. The question that most concerns Yasein Taher's attorney, Rodney Personius, is the one that strikes at the Constitution's Eighth Amendment. Personius says if bail is denied for his client and the others, it would set a precedent for anyone charged with this crime in the future. And he says that's wrong because denying bail is supposed to be the exception, not the rule.

"I don't think that there is any appreciation that the presumption, under our law, is that an individual will be released, pending trial," said Personius. "I also don't think there is an understanding of the heavy burden that the government bears if it seeks detention, particularly on the basis of dangerousness to the community."

That's why prosecutors were back in court, arguing vehemently again Thursday. They presented additional evidence they called clear and convincing that the men are a danger. One document, found in Taher's apartment last week, advocates suicide bombings -- in frightening detail. Defense attorneys were quick to dispute the meaning of the document, and Taher's reason for having it. Personius described the document as a "scholarly discussion," one among many religious papers.

But UB Law Professor Lee Albert says it doesn't matter what is. Albert says the Constitution protects a person's right to read and consider ideas -- even evil ideas. But he says it's not the first time the First Amendment has met with a fight.

"It's not dissimilar to the questions we used to ask during the McCarthy era about the extent to which people who had some contact with the Communist Party, but not necessarily shared that goal of overthrowing the government by force and violence, whether that could be made criminal," Albert said.

Proving that the six men went beyond mere association with al Qaida is the burden that the prosecution has struggled under. In addition to the new evidence, U.S. prosecutor William Hochul had previously entered the silence of the suspects as evidence that they pose a danger. He repeatedly asked the judge to "connect the dots" in what he called a "conspiracy of silence." If the judge does, Rodney Personius says it would be an extremely dangerous precedent to set.

"It is absolutely contrary to our Constitutional and legal precepts that an individual's silence can be held against that individual, as it is that an individual has any affirmative obligation to come forward if the individual has even the remotest information concerning what is claimed to be criminal activity," said Personius. "The Constitution absolutely does not call upon an individual to make that kind of disclosure."

But there's an even bigger legal principle in this case. Judge Schroeder ended the hearing by saying he's not sure if the law the men are charged with violating is even constitutional. Former U.S. Attorney Denise O'Donnell says the statute, which is part of the Anti-Terrorist Act of 1996, has previously been ruled unconstitutional.

"A statute under our constitution, and due process clause, should be clear in informing the informing the public about what conduct is forbidden and is criminal," said O'Donnell. "And in this case, at least two courts have found that the statute itself doesn't clearly inform people about what kind of conduct is prohibited."

O'Donnell adds that Judge Schroeder is not bound by those two California civil cases. And the statute was upheld by the judge in the John Walker Lindh case. But in that case, Judge Schroeder pointed out there was demonstrated violence. And Schroeder says that's clearly absent in this case.

Schroeder says sorting out the constitutionality of the vague statute will be his first job. U.S. Attorney Michael Battle, who watches his prosecution team from the sidelines, acknowledged that bail could be a moot point.

"If he determines, or someone determines that the statute is unconstitutional, then there's no issue at all, whatsoever," said Battle. "But, again, it's our position that that's not before the court at this time. But the judge, of course, is entitled to his opinion."

Defense attorneys say they don't know how the judge will rule in this bail hearing. But attorney Rodney Personius says he believes Schroeder is up to the weighty decision before him.

"I would pretend to make any kind of forcast as to what magistrate Judge Schroeder will do, except to express the greatest confidence that he'll render a decsion that he believes, in both his mind and his heart, is consistent with our laws and the considerations of justice that have to come into play," Schroeder said. "I think he not only has the background for it, I think he has the backbone for it."

Legal scholars agree that no matter how he decides, Judge Schroeder's ruling in this first case of domestic terrorism will earn him at least a footnote in the pages of history. The question remaining, is how big that footnote will be.