How to Defend a Suspected Terrorist

(Jan. 8) -- Miriam Siefer's big Christmas present came a day late this year, when the high-profile terrorism case of Umar Farouk Abdulmutallab dropped into her stocking.

Unlike many terrorism suspects, the so-called Underwear Bomber will be tried in civilian court, and Siefer, the chief counsel of the Federal Defender Office in Detroit, should have full access to her client. But she still faces an extraordinarily fraught task, representing someone who reportedly has admitted to the accusations against him, not to mention spoken to authorities of his ties to al-Qaida. Moreover, the prevailing public mood means it's unlikely her client will be tried before a sympathetic jury pool. And already the bloggers have gone into attack mode against Siefer herself.

This will not be Siefer's first terrorism case. One former client pleaded guilty to illegally transporting ammunition, claiming he had taken it aboard a flight because he was planning to kill Osama bin Laden; later, in 2003, her office defended a client who was convicted of belonging to a terrorist sleeper cell, winning a dismissal after it came to light that the prosecution hid evidence from the defense.

What lessons from those earlier experiences will she carry with her when her client has his first appearance at the federal courthouse in Detroit on Friday afternoon?

And in general: Just how do you go about representing a suspected terrorist?

1. Get Your Client to Talk to You. That's been difficult for many of the attorneys representing terrorist suspects, including those who've worked with convicted 9/11 plotter Zacarias Moussaoui and a number of the detainees being held in Guantanamo Bay. In a talk at the University of Virginia, attorney Edward MacMahon, Moussaoui's lawyer, explained why suspected terrorists tend to be disinclined to cooperate with counsel: "People like Moussaoui don't really want lawyers; they have their own agendas. They all want to die. At least they say they want to die." Whether or not Abdulmutallab shares that view, it's worked the other way around with him. Since he's reportedly already spilled his story to U.S. authorities, Siefer has had to instruct her client to shut up.

2. File for a Change of Venue. After President Barack Obama announced that at least five Guantanamo detainees would be tried in a New York civilian court, many speculated that one of the first moves of the defense would be to request a venue change, according to The New York Times. They made the argument that the city with the greatest 9/11 death toll would produce a prejudiced jury pool. But such requests are rarely granted, and even then they don't always work out for the defense. In the Oklahoma City bombing, Timothy McVeigh's trial was moved to Denver, and he was still convicted and executed.

3. Say He Was Tortured. That's one likely tactic of the lawyers who will defend Khalid Sheikh Mohammed, accused 9/11 conspirator, at his upcoming New York trial. The government has admitted to waterboarding Mohammed 183 times. "If I'm the defense attorney, I would say 'this was the product of torture'" and should be thrown out of court, said Steven Wax, a federal public defender in Oregon who has represented seven Guantanamo defendants. But Abdulmutallab has been handled by civilian authorities inside the regular U.S. justice system and is unlikely to have been tortured (although some Americans want him to be). Still, expect Siefer to challenge her client's statements to authorities. "They may be able to challenge his statements, whether he was given Miranda rights," said Keith Corbett, a former organized-crime prosecutor in Detroit. But "you still have a large number of witnesses who saw things in a confined space. That's going to pose a serious problem to the defense."

4. Say He's Crazy. Siefer could ask for a mental-health exam for her client, but such a tactic would carry steep risks. As the Washington Times reported of a case decided in December: "Jihadists take note: The insanity defense may not work for you. ... Naveed Haq, a self-styled soldier of Islam, was found guilty of aggravated first-degree murder and seven other counts related to a 2006 shooting rampage in Seattle. The prosecution successfully argued that Haq was a jihadi terrorist on a mission for martyrdom; the defense said that just proved he was crazy."

5. Cut a Deal. This is probably Siefer and Abdulmutallab's best option. Obama's counterterrorism adviser, John Brennan, has already said Abdulmutallab would be offered a plea deal if he provided useful information concerning terrorist contacts. What's not clear is what Siefer would have to do to convince Abdulmutallab to cooperate. "A person who wants to blow himself up in an airplane over Detroit is not looking to shave some time off in the big house," Lloyd Meyer, a former terrorism prosecutor at the Guantanamo Bay prison, told The Associated Press. "I have no doubt he will welcome the world stage of a federal courtroom. They want a public forum. They want the spotlight to show why they are holy warriors against the great Satan." But if Abdulmutallab does want to cop a plea, he better hurry. The longer he waits, the longer it's been since he's had contact with his allies, and the less useful any information is likely to be.