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New York Law School




John Walker Lindh. Zacarias Moussaoui. Jose Padilla. Richard Reid. Who reading these lines does not instantly recognize the names of these men? Or at least their assigned noms de guerre: American Taliban, 20th hijacker, dirty bomber, shoe bomber. For two and a half years these names and others have flitted through our daily copies of The New York Times like shadow characters in a play, along with black-and-white photographs underneath which black-and-white text tells us of their alleged (and sometimes proven) wrongdoing and the latest developments in their tribulations (and sometimes trials) with our government. But the men themselves are almost invisible, hidden from us by our government, which insists that the characters and the play are too dangerous for public view.

The clich6 that the events of September 11, 2001, "changed everything" is perhaps nowhere more true than in the realm of criminal procedure. Soon the Supreme Court will decide whether aliens the United States has imprisoned at Guantanamo Bay, Cuba, can challenge their detention in U.S. courts, and whether a U.S. citizen captured in a foreign war zone can be held indefinitely, without counsel or even a charge, when the president decides he is an "enemy combatant."' The Court will also decide whether a U.S. citizen arrested inside the U.S. and deemed an enemy combatant can be similarly detained; 2 and the Court may decide whether the government can continue to detain individuals under the federal material-witness statute in order to obtain grand jury testimony from them.3 Meanwhile, the American Civil Liberties Union is challenging the government's authority to search homes without probable cause and to order libraries and other organizations to disclose information about private citizens, both in secret;4 the Fourth Circuit is deciding whether a terror defendant can have access to other alleged terrorists in government custody who a trial court has decided might provide evidence exculpating the defendant;5 and U.S. military tribunals will soon begin trying Guantanamo Bay detainees in proceedings shorn of constitutional protections long embraced as essential to due process. 6 Each of these matters involves a criminal procedure issue that is central to the government's post-September 11 domestic antiterrorism efforts. Few of us, if any, imagined that any of these issues would ever arise.



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