Duke Journal of Public Affairs Winter 2011

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Volume 6 Issue 1 Winter 2011

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Finally, the stamp of Duke University and its continuing goal ought to be the unrelent-ing search for excellence in all of its endeav-ors. Duke aspires to leave its students with an abiding concern for justice, with a resolve for compassion and concern for others, with minds unfettered by racial and other prejudic-es, with a dedication to service to society, with an intellectual sharpness, and with an abili-ty to think straight now and throughout life. All of these goals are worthy of outrageous

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T he world is changing faster than we ever anticipated, and it is bringing about changes that people have

never anticipated, resulting in un-precedented challenges for the new millenium. The first decade of the 21st century was a time of witness-ing the continuation and evolution of ongoing issues as well. As new natural disasters occur daily, the effects of climate change and global warming are becoming increasingly apparent. Outbreaks of information on the Internet through mechanisms like WikiLeaks further demonstrate the capabilities with today’s technology. Furthermore, the ongoing War in Iraq and War in Af-ghanistan serve as a reminder of the costs of conflict and bring about new ethical, political, and social chal-lenges. This issue of the Duke Jour-nal of Public Affairs sought to dis-cuss some of the new century’s most compelling quandaries of a new and global age. Featured author and interna-tional scholar, Mirjana Todorovska, examines the nature of patenting biotechnology research in the Re-public of Macedonia. Todorovska emphasizes the importance of devel-oping appropriate and sustainable methods of patenting to develop ro-bust biotech sectors for the Republic

of Macedonia. In another article, Duke Universi-ty graduate student in sociology, Mi-chael Ma, discusses the implications of Internet censorship in China. As China takes a larger role in global affairs, the repercussions of China’s Internet use have greater range, es-pecially given the interconnected-ness of the world. Ma concludes his final section with an astute question of considering whether the best pol-icy for China is necessarily the best policy for the rest of the world. Other articles included in this is-sue delve into complex current issues that have also presented themselves in the beginning of the 21st century. Carissa Mueller’s article touches on military tribunals and putting ter-rorists on trial in the United States. Brent Beckert’s article also discusses the criminal justice system, although in a different respect. Beckert’s piece analyzes the effects of Hurricane Katrina on the New Orleans Crimi-nal Justice System, a lesser discusses consequence of this natural disaster. Finally, Christopher Edelman’s essay on the nature of the War on Terror and religion is featured as the winner of the 2010 Duke Journal of Public Affairs Policy Competition. The Duke Journal of Public Affairs congratulates Christopher Edelman on this accomplishment.

Despite the diversity of topics, all the articles discuss the complicated nature of these issues that have no clear-cut solution. Rather, they in-vite more discussion, debate, and research in hopes of finding new methods of addressing today’s most pressing challenges.

Christina LeeEditor-in-ChiefDuke Journal of Public Affairs

From The Editor’s Desk

Contents

6Michael Ma, “The Rising Tide”

Analyzing China’s Surging Internet Growth and Policy Repercussions

18Mirjana Todorovska, “Patenting Of Biotech Research

Tools in the Republic of Macedonia”Examining Sustainable Models of Use

34Brent Beckert, “Surviving the Storm”

The Implications of Hurricane Katrina on the New Orleans Criminal Justice System and Public Defense

64Christopher Edelman, “Looking Beyond the Qu’ran”

The Roots of Terrorism in the Middle East and Corresponding Solutions

48Carissa Mueller, “Terrorists on Trial”

Military Commissions and Federal Courts


The Rising Tide: Analyzing China’s Surging Internet Growth and the Resulting Policy Repercussions

Michael Ma

Foreward

The Internet1, although itself a rela-tively recent invention, has revolution-ized the way people obtain information and communicate around the world. Though collective file sharing was its in-tended original use, the Internet today is used for numerous purposes including email, global commerce, net collabora-tion, streaming media, and general web browsing. It is estimated that as many as 1.4 billion people have used the In-ternet - proving the ubiquitous nature of its existence [1]. Thus, the growth of the World Wide Web has possibly been the single greatest trend in the incorpo-ration of a digital lifestyle for the aver-age human. One of the relatively recent nations to immerse itself in cyberspace is China, whose rapid economic growth and desire to maximize its utilization of the World Wide Web will lead to potential Internet improvements and programming advancements. Howev-er, the Chinese Communist Party2 has created and financed one of the most extensive Internet censorship networks

in the world, seemingly in accordance with socially conservative aspects of the Chinese culture and vestiges of a foregone Marxist era. The People’s Republic of China – a coun-try that is quickly polarizing the globe as an emerging superpower contender, will soon arrive at a critical policy juncture with regard to Internet regulation. Priori-ty in this paper has been given towards the historical buildup of Internet technologies in China, diagnosis of present Internet use in China through empirical data, and re-alistic public policy recommendations for China’s future. Recent transgressions, such as Google’s wavering decision to remain in China despite lackluster performance and looming cyber-security threats – will also be examined in detail. Care has been tak-en to minimize extraneous socio-political commentary wherever appropriate.

The Great Firewall

Paris-based Reporters Without Borders3 , a non-governmental international organi-zation that advocates freedom of the press, publishes a Worldwide Press Freedom In-

Michael Ma authored this paper for Duke Professor Bai Gao’s graduate sociology course. Originally hailing from now-central Beijing, Michael Ma is an avid photographer and adventure thrill-seeker whose wanderlust has taken him to six continents and over 30 countries. When not scouring remote Central American villages for a wi-fi signal - Michael splits his time between his home in Darien, CT and the beautifully Gothic campus of Duke University, where he pursues a graduate degree in the humanities. Though deeply entrenched in academia, Michael occasionally procrastinates enough from his coursework to focus on compelling international public affairs, especially those concerning Asia.

Michael Ma


dex each year. According to RWP’s comprehensive index, China placed 163rd out of 169 studied nations in terms of freedom of press, while the United States ranked 48th and Russia was rated 144th on the list [2]. Since the onset of the Internet boom in China, the government has been vigorously policing the In-ternet, dictating what Chinese citizens can and can-not see. The main reason given for the severity of the Internet policy in China relates to the fact that the government has prioritized the protection of the state’s interest above all else; the CCP worries that the Internet could provide a visceral threat to their existence and status. Thus, the Chinese government has invested billions of dollars to develop complex matrix systems in order to censor content and limit suspicious activity on the Internet – all at the ex-pense of personal freedoms. Censorship in China is a fairly recent issue, in part because China was one of the later Asian countries to fully embrace mainstream Internet usage. As the Far East became engulfed by the Internet phenom-enon in the late 1990’s and 2000’s, the Chinese gov-ernment was forced to take action regarding censor-ship. Recent polls have indicated that China has at least 94 million official Internet users, half of whom have broadband access [3]. The sheer size of Internet usage in China proves the robust job that the Chi-nese government faces when trying to regulate the Internet. Censorship in China is conducted under a variety of laws and administrative regulations devel-oped by the government throughout the years. This is done largely through the existence of an Internet police task force that is in charge of both develop-ing the technological software used in censoring, as well as ensuring that adherence to the rules occurs [4]. In order to spearhead the initiation of a program directed towards censoring content on the Internet, the Ministry of Public Security created the Golden Shield Project. Started in 2003, this project had the desired goals of constructing a communication net-work and computer information system for govern-ment officials to improve their capabilities and effi-ciencies in policing the Internet. This culminated in the creation of the “Great Firewall of China,” which uses all of the complex technological hardware and software to censor content. The next few paragraphs will serve to discuss the ways in which China has been so prolific in censoring content on the Inter-net. Although China has spent billions of dollars im-plementing technology used for censorship, includ-ing the reportedly $800 million USD Golden Shield Project, China has created the largest firewall in the world. One reason why this is possible is because

China has rewired the fiber optic cables to only enter the country in one of three points: Beijing-Qingdado-Tianjin in the north, Shanghai on the central coast, and Guangzhou in the South where it comes from Hong Kong [5]. By doing so, they essentially limited the number of places where they have to monitor and control content. At each of these three interna-tional gateways, China has installed tappers, which is a new technology that can mirror every packet of data going in or out – including lightly encrypted caches. Information travels along fiber-optic cables as little pulses of light, and as they travel to these international points, numerous Lilliputian mirrors bounce reflections and separate the data, which then gets analyzed by Golden Shield computers that de-cide whether or not the content should be flagged. The Golden Shield computers are programmed to detect and stop information, and do so according to four different pieces of technological software. The first is the DNS (Domain Name Service) block, which in laymen terms, is the telephone directory of Internet sites. Each Web address coincides with a number sequence such as 38.1456.555, and if the number sequence matches the number sequence of a website on the forbidden list provided by the gov-ernment, then the DNS will give back no address. This is how the Chinese government prevents citi-zens from going to specific websites, such as <http://www.freetibet.org>. The second piece of technology they utilize is the connect phase. After allowing the web address to be processed, the computers can still prohibit the con-nection to this website, and will interrupt the trans-mission and prevent it from going through. This scenario applies as an early deterrent to ‘harmful’ e-mails sent by China’s Internet users, particularly if the e-mail server is located within national bound-aries. The third barrier that the Golden Shield proj-ect possesses is the URL keyword block. Although the numerical Internet address that one is trying to reach might not be on the blacklist, the words in the URL might include forbidden terms. If this is the case, the computers are designed once again to pick up on this and the connection will be reset. An ex-ample of this may be a website that is not prohibited by the government, but contains the phrase ‘Falun Gong’, which happens to be a search term prohib-ited by the government. This will be picked up by the computational mirrors and prevented from be-ing patched or transmitted. The final protective barrier that the Chinese gov-ernment has is perhaps the most sophisticated and secretive of the four: scanning the actual contents of each page. Although the exact software coding uti-

The Rising Tide


lized is not directly known, tech engineers have de-veloped a way where tiny sensors can actually scan the content on every page, judging page-by-page the accessibility of the website. Whenever surveillance systems flag an IP address or detect prohibited con-tent within the mirrors, authorities have developed technologies that can systematically pinpoint the geographical origination of that computer terminal. Thus, there is a likely chance that the authorities know exactly what registered user is sitting at the computer and where the terminal is located. Within a short duration of time - sometimes in less than an hour, authorities can be at the door threatening im-prisonment; or, they can electronically trace the ad-dress of the home or Internet café in order to man-date fines and impose further restrictions on web usage. Minor Internet offenses, such as repeatedly searching for restricted topics, may simply lead to the connection being disconnected, even if the user has an ‘always-on’ broadband connection. The story of journalist Shi Tao - who had used a Yahoo account to post pro-democratic materials online, serves as an excellent example of the efficacy with which the CCP’s cyber-police operate. Within mere days, local authorities searched Tao’s residence, arrested him

on suspicion of acting against the government, and imprisoned him for several months without grant-ing bail or an official trial. Using this new technology of progressive page-by-page scanning, government computer systems red-flagged Tao’s blog containing his pro-democratic comments and routed warning notifications to the proper officials. This case study shows exactly how serious the Chinese government is about upholding the regulations that they have in place regarding Internet usage. The censoring of web content by the CCP has had reverberating effects on the population of China, with peculiar implications for the world of academia. The vast majority of the general Chinese population does not have direct access to the Internet, mostly ascrib-able to financial limitations or steep technological learning curves for older generations. In addition, it is difficult for moderate-income Chinese consumers to obtain household Internet access due to insuffi-cient/obsolete wiring in dated apartment buildings and lack of available commercial Wi-Fi services. Thus, the usage of Internet café’s in China has be-come an increasingly popular pastime. Over 50,000 of these Internet café’s – or Net Bars, exist through-out the nation. Net Bar’s have been particularly hard

Michael Ma

Baidu’s headquesters in China. [Source: Wikimedia Commons]


to regulate, so from October to December of 2004, Chinese authorities closed over 12,000 Net Bars and implemented more stringent laws regarding public Internet usage, augmenting existing inconveniences for the general population. Net Bars now have com-pany guidelines that they must follow in addition to the government-enforced Golden Shield protocols. In 2005, China implemented new rules banning children under the age of sixteen from Net Bars and required that business owners keep detailed logs for 60 days of Internet usage and the pages visited by the customers. In addition, people must sign in with specific identification cards before they are granted access to the Internet. First, this greatly limits the accessibility of the Internet for school-age children. With many homes lacking personal Internet con-nections, children often must rely on computers at school to access the Internet, which severely limits their capabilities to communicate and learn rel-evant information. This stringent web control also has large effects on Chinese colleges and universi-ties, where it is becoming increasingly burdensome for researchers and scholars to obtain necessary and harmless information that is vital to their studies. For example, Professor Chu Huongqi of Beijing Normal University commented that if a Chinese re-searcher, or any researcher for that matter, wanted to study the Tiananmen Square ‘situation’, they could not simply put that into Google China and come up with adequate results. Rather, a study at the Beck-man Center for Internet and Society at Harvard Law School found that the only results obtained when entering Tiananmen Square related to tourism and the travel industry [6]. They did conclude, however, that China is by no means static, and the list of pro-hibited sites is updated daily and sites are blocked and then unblocked arbitrarily. However, this still suggests that researchers have trouble accessing rel-evant information because of technological software that China has developed which censors and prohib-its specific content. The uneven implementation of policy that the Chinese government has enacted is quite surpris-ing. For example, very little of the censorship seen throughout mainland China is replicated in the spe-cial territories of Hong Kong or Macau. Rather, the Internet in these regions is essentially ungoverned, and most web restrictions do not exist in these terri-tories. In Hong Kong, a lot of the same laws may ex-ist on paper, but there are virtually no consequences for violating the rules vis-a-vis blogging or using ex-ternal servers to view sites [4]. To a certain extent, even pornography is deregulated in Hong Kong. On the other hand, the Chinese government is much

more stringent on the censoring of Tibet-related web activity due to the historical/political sensi-tivities associated with the region. CCP servers may implement stricter filtration software for incoming foreign media that is suspected of containing such web contraband. It is worth mentioning that in the autonomous province of Taiwan, the municipal gov-ernment regulates the Internet with a much more liberal ordinance than the CCP. As the 2005 Zittrain & Edelman [6] study con-cluded, there is inconsistency within mainland Chi-na as to what is censored and what is not censored. During the course of the empirical study at Harvard, specific news sites such as CNN and Slashdot were blocked and unblocked in the course of a week. Re-searchers concluded that news sites with sensitive content do not appear to take long to be blocked, but are taken off the prohibited list with similar expedi-ency. Thus, it is not explicitly known what criteria is used to evaluate which sites are to be censored and which sites are not to be. Specifically, pornography is considered to be one of the most heinous crimes on the Internet in China next to blogging about the government; yet during the course of the Harvard Study, only 13.4% of the sample of well-known sexu-ally explicit sites seemed to be blocked from access by the government (compared to 86.2% of the same sites blocked in Saudi Arabia). Nevertheless, sites dealing with such generic concepts as democracy or massacre are almost always prohibited by the gov-ernment. Thus, the Chinese Internet policies are by no means static, and there is a great deal of dynamic inconsistency within the regulation of policy itself. The increased global attention of censorship within China has resulted in the creation of a num-ber of devious ways by which people sidestep the restrictions and are able to get the information they need or want. Although it was previously believed that only businesses (especially those based off-shore) were capable of sidestepping the restrictions via private cache reserves and encrypted data packet streamlining, recent research has indicated that the general population has the capability, given enough technical knowledge and effort, to get around the censors. The first way that people get around the firewall is through a proxy server. A proxy server in essence is a way of connecting a computer inside China with another computer outside out China, al-lowing it to retrieve information from American or Japanese servers and transferring it to Chinese ones. This is a cheap way to get around the regulations, which makes it popular among students and hack-ers. Using external proxy servers, nonetheless, can

The Rising Tide


create broadband bottlenecks and make streaming Internet usage agonizingly slow, so more businesses choose to use a Virtual Pirate Network (VPN). The VPN basically creates your own private, encrypted channel to run alongside the normal Internet, and can transfer information from a server outside Chi-na to a server inside China. VPN’s only cost around $40 USD per year, but for the average Chinese work-er who makes a little over a dime a day, this cost is too exorbitant and cannot be used [5]. Although this problem is easily correctable by the government, the bottom line is that every bank, every foreign manu-facturing company, and every retailer needs VPN’s to exist, and the Chinese government could not survive without the survival of these firms. Thus, although certain individuals are now exploiting the loopholes in the system, the Chinese government currently has little choice and must allow some exceptions to its control if it wants the economy and its culture to re-main intact.

Contemporary Cyberspace Issues

Since there are significant loopholes within the cur-rent censoring system, it is evident that the Chinese government needs additional assistance from vari-ous corporations and organizations based elsewhere in the world. It is neither economical nor efficient for China to police the Internet by itself, so the gov-ernment has enacted policies to garner help from others. The Internet Society, which is a CCP state-owned Internet Service Provider4, recently enacted laws requiring that all domestic ISP’s, as well as con-tent creators, sign an official pledge that they will automatically bowdlerize their available web con-tent according to state parameters. Though relying on self-governance through private enterprise is no doubt flimsy, this is simply the first line of defense for the government. By having the domestic ISP’s such as Baidu self-filter at the source of the content, they eliminate a great deal of effort that they would otherwise have to incur. This also shifts some of the financial costs from that of the Chinese government to the local corporations. Interestingly enough, this policy of self-filtration also applies to international search engines such as Google. In the United States, there was a great deal of public outrage when it was announced in late-2005 that Google had entered the Chinese market prescient of the fact that they would be censored and required to filter their own content, calling it un-democratic and anti-American. How-ever, Google was faced with only two feasible options at the time: enter and comply with Chinese Internet procedures or ignore the growing Chinese market

altogether. No third option existed for Google to en-ter the Chinese market and refuse to comply with state-imbued Internet ordinance. Not entering the Chinese market would have meant turning down potentially auspicious eco-nomic revenues for the highly visible web giant, and Google was unwilling to sit passively and al-low competitors to vie for valuable international market share. Yet the decision to enter the Chinese market was not made without ambivalence. Sergey Brin, Google’s Technology President, had spent his childhood years in the prohibitive Soviet Union and initially opposed entering the Chinese market under any censure whatsoever. Google finally acquiesced to the CCP’s demands when in-house Chinese and Chinese-American employees successfully lobbied the executive team with the argument that even a censored version of Google can improve informa-tion accessibility and increase freedom of expression in China by propagating new portals for Internet communication [7]. Yet Google’s tumultuous entry into the Chinese Internet sector was not the beginning of a fairytale story; its tenure in China has been marred by further controversy and constant lagging performance be-hind Internet giant Baidu, which offers many of the similar products that Google China offers5, though neither enjoys the online retail advantage of Aliba-ba6. As of August 2009, Google China only has a 29% share of the entire Chinese Internet market, com-pared to Baidu’s overwhelming 62%. In addition, the sudden departure of Google China founder Kai-Fu Lee7 in September of 2009 surprised many Internet users in China and the U.S. [8]. Google’s entry to the Chinese market has also created additional opportu-nities for Internet crimes such as copyright infringe-ment. Intellectual rights piracy has been widespread in China’s cyberspace, most notably involving Mi-crosoft software and various types of media owned by artists and studios worldwide; though, Baidu has come under scrutiny for facilitating and promoting illegal MP3 downloads. With no published figures on the annual amount spent combating these inter-net crimes, the CCP’s apparent apathy towards in-tellectual property rights offenses may very well be transposed to its own security agenda [9]. Recent cyberspace attacks on activists abroad have also forced Google to ramp up their Internet security. Such was the case with 20 year-old Tenzin Seldon, a Stanford student and Tibetan indepen-dence supporter who had her e-mail account hacked into from a source within China. Through phishing techniques aimed at obtaining an individual’s user-name and password, malware and spyware are often

Michael Ma


bonded with Adobe Acrobat documents to remain undetected through preliminary e-mail antivirus shields – not unlike traditional Trojan Horse schemes or evolved Hydraq algorithms [10]. A group of Muck Institute researchers from the University of Toronto has concluded that, “an automated espionage system based in China was using targeted e-mail messages to compromise thousands of computers in hundreds of governmental organizations” [7]. Afterwards, the e-trespassers would scan and select certain docu-ments from the users’ account for transfer to a digi-tal storage facility based in mainland China. It is, nonetheless, difficult to ascertain the exact origin of these malicious attacks, since violators will often reroute their IP addresses via outside proxy servers and HTTPS encryption [7]. This begs the question – has China’s expansive internet security protocol extended to the rest of the world?

Google China is undoubtedly asking pondering this very question as it muses over its future role in China. Recent news reports have indicated that Google top brass is considering a potential exit for the company in the Chinese market after a series of human rights activist-related cyber-attacks and a declining tolerance to the CCP’s ever-increasing censorship requests. Perhaps another reason for the considered withdrawal has to do with the stiff com-petition. Though Google China has maintained pos-itive profits and technical advances since its incep-tion in 2005, it has not been able to close the large

user disparity between homegrown ISP giant Baidu, with their 7,000 employees8 and close to $13 billion USD market value. In 2008 alone, Baidu earned $150 million USD in profit along with $460 million USD in total revenue9; no small feat despite its 338 million online users and 8 billion monthly searches. Polls in-dicate that up to 85% of Net Bar users prefer Baidu to Google China, though this figure may only repre-sent the demographics of Net Bar users, as studies have pointed out that wealthier and more educated Chinese seem to choose Google China over Baidu [9] Furthermore, recent reports have surfaced in-dicating the that the cyber-attackers may have col-laborated with Google China employees in order to obtain the necessary information for the sophisti-cated worldwide account breaches, which included attempts at hacking the personal computers of the exiled Dalai Lama [11]. This disturbing revelation

may provide the impetus for Google China to reexamine company policies through thor-ough internal investigations and purge inside perpetrators. In a side note, Yahoo! search engine subsid-iary AltaVista’s initial recalcitrance to the CCP’s user transparency requests in the early 2000’s hindered its entrance to the Chinese sector. This reflects the power that the Chinese gov-ernment yields over foreign companies, even those that pledge to make large direct invest-ments in technological infrastructure and soft-ware improvements. Not wanting to miss out on an exponentially lucrative consumer mar-ket, many foreign firms are willing to sacrifice parts of their mission statements10 and operat-ing procedures in order to share some of the burgeoning Chinese Internet profits. Google is only one of the countless examples of foreign firms (including Cisco Systems, who alleged-ly helped create the mirror software that the Chinese government employs) who have suc-cumbed (so far) to the pressures of the Chi-nese government in order to gain profit from

this quickly emerging market. As one Silicon Valley venture capitalist remarked, “Google has Microsoft on the ropes, and China is arguably the world’s most important market outside of the U.S. You don’t walk away from that on principle” [10]. Exactly which set of principles – moral or financial, remains to be seen.

Policy Alternatives

In line with all the massive global organizations and multinational conglomerates on the planet, the

The Rising Tide

Table showing revenue shares of various internet search engines in China. [Source: iResearch]


Internet is becom-ing a progressively arduous entity to monitor – a laby-rinthine nexus of Java applets, IMAP patches, Meta tags, and RSS feeds…all circulating within the visceral fiber optic nerves of the global com-munity. Attempt-ing to contain this hermetic synthesis of virtual domain and physical real-ity from running its course becomes a difficult, if not an impossible deci-sion altogether. China’s stringent Internet policies and strict codes of conduct are be-coming harder and harder to enforce, especially as the number of Chinese Internet users and younger genera-tions familiar with computer systems increases [4]. Af-ter much analysis of the current situ-ation and outlook on China’s Internet system, a total of three feasible solutions were conceived to repre-sent realistic and ‘live’ options for the ruling party. First and foremost, China could decide to restrict Internet even further than they are currently doing in order to demonstrate the concept of protecting the ‘security’ of the state and elevating it way above the rights of the individual. All inbound and out-bound e-mail would be filtered and flagged for sen-sitive information, while intense server notification systems would alert authorities over potential ‘trou-ble makers’. More ‘illegal’ websites would be blocked from Chinese users, and the list of Internet offenses would be updated on a constant basis. What this means is that the Chinese government would have to invest heavily in upgrading existing technological monitoring systems and establishing a larger budget

Michael Ma

portion (cur-rently unknown) to pay the in-creased hike in the recruitment of additional Internet police. Of course, pres-ent labor wages in China remain relatively low, and with the esoteric design of the current system in place, China would not have to radi-cally alter any-thing. It can be expected that some freedom of speech protests would break out amongst the population internally, but nothing radi-cal11 would be expected. Note that this choice is hardly con-sidered amongst political figures or policy think tanks of the Western world – academic zeit-

geist surmises that China’s current Internet regula-tion system is unacceptable as it is and does not en-tertain the thought of it getting any more restrictive. Yet this initial option must be included in the list of all possible choices for the CCP’s future regulation of Chinese Internet usage. Secondly, the Chinese government could open up the Internet by increasing users’ freedoms within Chinese-governed provinces. The mobilization to-wards such a move would be simple; the Chinese government could literally choose to do nothing. All existing Internet security personnel would be redi-rected towards other jobs in the government, and the current firewalls and filtering systems would all but become obsolete by the year’s end. In this re-gard, the actual mechanism of the choice is a passive one – increased Internet freedom generally means a

Graph showing the proportion of Google searches blocked in China. [Source: : Empirical Data from Zittrain & Edelman’s 2005 Harvard Study]


lower rate of governance and an increased expecta-tion on personal discipline, which should not be a problem for many Chinese. However, the strain on the Chinese government in making this decision is actively opening up the possibility that China’s state rule will be suspect to revolutionary change in its functional role as the authoritative government. In-dividuals within China might see this slack in policy as the catalyst for China to slide down that slippery slope into eventual democracy. While many external nations and organizations would like to see this pro-gressive change within China – it is not clear how well China will take any significant alterations to its rule. The economic, social, and political impacts would be entirely impossible to accurately predict from within Chinese Communist Party rule, much less a limited Western perspective. If Russia’s trans-formation to democracy is any example of what a communist state must go through in order to reach true democratic ideology, then the option of reduc-ing control on citizens becomes unappetizing. Thirdly, the Chinese government may decide to play it by ear and maintain the current system until it reaches a critical point at which it is forced to con-front the two above options. Waiting it out would give the Chinese government more time to consider all possible risks and benefits associated with either of the above choices. In addition, there should not be much increased negative publicity on China’s cur-rent practices as long as they maintain the status quo – that is, things should not get much worse in the public spotlight of Western nations if China stays on course. This would give the CCP an unbiased and clear head to think things through, with the possibil-ity of testing minor technical policies or regulatory techniques along the way. In the meantime, minor policy adjustments such as standardizing inconsis-tent blog censorship and addressing the growing matters concerning international copyright laws can be undertaken. Curbing overzealous nationalism12 and decreasing online retail protectionism13 may also be fitting short-term projects. Keep in mind that, for all of the choices listed above, there is very low probability of any actual public involvement in this future policy. The unique setting of the dominant Chinese government gives it ultimate reign in matters like these, which are con-sidered quasi-issues of national security. As such, the ramifications of a potentially wrong choice are almost internally (within China, that is) nonexistent, save for a few localized incidents or minor protests. In other words, no matter what policy China chooses, all will be considered to be superficially ‘correct’ by

The Rising Tide

the Chinese population because any significant pub-lic dissent will not be tolerated. Thus, it is extremely difficult to accurately gauge the level of agreement that the majority of Chinese Internet users will have with any of the policies selected above. All quantita-tive or qualitative data may be skewed in favor of a rather ‘nationalistic’ mindset, rather than to reflect a true, discerning common perception [12]. Let us consider, without incidental bias, the ef-fects of other highly restrictive Internet systems in the world, as rated by prevailing authorities and comprehensive studies in the modern era. Kim Jong Il’s Democratic People’s Republic of North Korea14 regime has some of the world’s strictest Internet regulations, but the DPRK is considered to be an overly repressive state in which denizens of Pyong-yang need a permit just to leave the city. Iran’s new Ahmadinejad-led government has recently cracked down on the accessibility of particular regions to photojournalists, but how similar is Iran’s geo-polit-ical climate in comparison to China’s Internet land-scape? The Internet security of Myanmar15 is one of the globe’s most stringent, but a causal comparison between Myanmar’s population and the amount of Chinese Internet users reveals how such a prolific control is possible for a relatively encumbered few. A picture is beginning to manifest that, not surpris-ingly, China is a unique example of a large, influen-tial global power still holding on to its preventative early communist roots. Even if Internet regulatory techniques are similarly contrasted between China and other countries – the history, culture, and sheer volume of China’s people make for an overwhelm-ingly difficult and unique population to govern. As with much of the past five thousand years in which China isolated itself in times of crises, a policy origi-nating from within China might be the best solution once and for all. [2] Eventually, there will be a critical ‘bottleneck’ point – the proverbial fork in the road in which China has to decide which path to follow. Until that juncture, China may maintain its current status quo by playing a balancing act between strong censor-ship and individual license to browse. The dilemma still exists, though, as to when China will have to choose a single road. The CCP cannot maintain this constant juggling act forever. Consideration and planning today for that future decision could have a vital effect on whether or not China successfully deals with the thriving Asian technological boom. From an economic standpoint, China has a great deal to benefit from ‘opening’ up the Internet. The sanctioning of unlimited online action would have


tremendous consequences for the business and eco-nomic world. Companies from all over the world would not have to rely on a few privately monitored servers anymore; instead, numerous servers and hosts would replace the need for the slow and inef-ficient process of screening incoming and outgoing e-mails or invoices [3]. In fact, the possibility of all outside proxy servers and foreign IP addresses ac-cessing China’s mainframes without harassment raises the potential for increased business com-munication within China. In addition, the average consumer would seek to benefit from an opening in China’s Internet security with fewer restrictions communicating with the ‘outside world’. A flurry of new possibilities in academic and institutional ex-changes can come about if China is willing to relax the austere principles which govern her Internet policies. With the impressive statistic that over 60% of China’s Internet users view media files (i.e. video, music, pictures) online on a daily basis, lessening the restrictions can be seen as releasing the floodgates of freedom to the mounting frustrations regarding the slow bandwidths and connection speeds in relation to large media files [6]. From a personal perspective, the technological landscape in China seems to be changing at a vola-tile pace. As the world’s leading country in economic growth for the past few years16, why would any bu-reau or organization seek to slow down the boom by way of surreptitious technical matters? Economic incentives to ‘open’ the Internet are far greater those to ‘close’ it even further.

Future Strategies

Suspension of Judgment

As much as this might seem like a stopgap option, the best choice for the CCP would be to suspend its judgment of any changes needing to be made at least until the end of the 2010 calendar year, if not a few years farther. This option is the closest we have to a pseudo-compromise – one that will partition both sides of the debate over China’s Internet regulation; Careful and considerate deliberation of the pros and cons of each argument can be further developed be-fore a consequential move is finally made. With con-sequences of an enormous magnitude, this onerous choice represents a model on which to base other potential freedom of speech decisions later. The 2008 Olympics served as an excellent testing ground for such trial periods in which the CCP flirted with provisionally increased freedoms and limits of web use. Though cumulative user data from all over the

country was collected, none of it has yet to be pub-licly revealed [3]. There is a wide range of opinions regarding the moves that China should make in terms of changing its Internet policies. Why not narrow that range and focus on small steps, one at a time? In all of its 5,000 year history, China has not been known for making wide-sweeping policy changes under government rule / kingdom domain – only drastic measures have been taken to displace current administrations or dynasties. Experimentation will likely appease, in minuscule portions, both staunch conservative ad-vocates of China’s internal security and liberal dem-onstrators for its freedom. At worst, this decision would prolong the agony of waiting for a definitive clause regarding Internet policies, but it would also minimize the risk of deciding on a potentially devas-tating choice. It is important that China makes this decision (even if the citizens are not involved with the actual process), and that it is not made for China. A single person deciding the policy within the CCP is better than a thousand individuals planning China’s pro-gram from the outside, as the Chinese government must maintain autonomy and a reputable sense of control if any of its policies are actually going to be successfully implemented. Only proof-positive con-clusions from an internally-generated decision will be effective in the long run. Furthermore, as seen in prior demonstrations and riots, the CCP does not respond particularly well to mounting external pres-sure. Diplomats, trade relations, private corpora-tions, and international events may all contribute to China’s decision – but it ultimately has to be made independently [1]. An honest and candid self-exam-ination of China is the only sufficient option. Visibility

In any case, no matter what strategy China em-ploys, it must be made visible. What this means is that the typical citizen can be expected to know at least the basic premises of such a policy – pleas of ignorance, even if discarded before by the governing bodies, should lessen drastically in volume as every tech user becomes aware of his or her limitations in cyberspace (if any at all). The increase in visibility regarding China’s future Internet policies should not be limited to inside sources. Rather, an interna-tional understanding (and even possible approval) by foreign entities would be best for everyone [5]. Education is a key component here. Internet users, while annually growing by the millions, are becom-ing younger and younger demographically. In order

Michael Ma


to raise substantial awareness about this issue, goals should be set to teach children at a young age the rules and regulations governing China’s evolving Internet policies. Questions regarding certain pro-cedures or protocols should be directed to a single source (read: information hotline/authority) that is both easy to find and access by the common user. No shrouds of visibility should haunt the ‘border-line Democratic’ blogger uncertain about the con-sequences of his/her actions. Contact information regarding technical problems should be routed to a few sources with as little political red tape in be-tween as possible. After all, the approach that was taken to analyze the current situation in China be-lieved it to be a public policy issue – something that, while maybe not entirely decided by the public, is consistently practiced and accepted by the public. Knowledge is power – if so, then China must adapt that mantra and start to educate the masses instead of merely issuing seemingly random punitive dam-ages [6].

Conclusions

All in all, the course of China’s Internet security and preventative systems measures reflect on the format of policy decisions within China. While few governmental policy shifts can be labeled as ‘easy’ so-to-speak, choices involving China’s freedom of expression and government censorship are of par-ticular importance, since they dictate (no pun in-tended) the paradigms by which the entire commu-nist charter operates. Then again, are the ideals of freedom in which we are so accustomed to entirely presentable to Chinese masses that have never seen the likes of unadulterated democracy? Is China’s current system ready for such a sweeping reform or liberated Internet communications? More questions than answers prevail. It is easy to jump on the bandwagon of popular Western thought and believe that China should / can / will do only one thing – but how paradoxically close-minded is this process of thinking? Trying to view China’s issues from localized Chinese per-spectives, while socially and politically impossible for most, is at least cognitively beneficial towards considering all sides of the issue. There are risks and rewards in every choice, and the consequences of a policy directed over a billion people are of high essence and priority. The question, albeit, remains: “What would be best for China?” Conversely, we are forced to ask ourselves if what is good for China – is good for the rest of the world[1].

The Rising Tide

Notes1. Following the international standards of Inter-net Corporation for Assigned Names and Numbers (ICANN) and the World Wide Web Consortium, “Internet” will be capitalized throughout this paper as a proper noun and/or adjective in order to distin-guish it from the obsolete common noun “internet”, which can refer to any internetwork or inter-con-nected protocol networks of the 1980s and 1990s. 2. Abbreviated CCP3. Abbreviated RWP4. Abbreviated ISP5. News, information resources (maps, documents, books), media searches (MP3/images/videos), social networking, etc.6. Alibaba currently maintains an 83% share of the Chinese online retail market7. President of Google China from July 2005 – Sep-tember 2009; formerly with Microsoft8. Compared to Google China’s 600 employees9. Compared to Google China’s $250 million USD revenue in 200810. Google’s official mission statement is “to orga-nize the world’s information and make it universally accessible and useful.”11. Such as the 1989 demonstrations in Tiananmen Square12. e.g. Google China employees colluding with hackers13. e.g. Prior to the Phoenix Nest search system, Baidu mixed search results with sponsored retail partners – sometimes elevating domestic shopping choices over international ones without regard to price or match14. Abbreviated DPRK15. Formerly the Union of Burma16. Above a 10% average GDP growth rate from 2000-2010---------------------------------------------[1] Noguchi, Yuki. 15 February 2006. “Internet Frims to Defend Policies.” The Washington Post. Retrieved from <http://washington-post.com/wp-dyn/article/2006/02/14/AR2006021>.[2] Grenzen, Ohne. “Press Freedom: Changed by Day.” Reporters Without Borders. Retrieved from <http:www.rsf.org/article.php3?_article=240525>.[3] Pan, Esther. 2005. “China’s New Internet Restrictions.” Council on Foreign Relations. Retrieved from <http://cfr.org/publica-tion/8913/>. [4] Kahn, Joseph. 4 December 2006 “China Has World’s Tightest Internet Censorship, Study Finds.” The New York Times. Retrieved from <http://newyorktimes.com/china/204567_censorship>.[5] Fallows, James. 2008. “The Connection Has Been Made.” The Atlantic. Retrieved from <http://www.theatlantic.com/doc/print/200803/chinese-firwall>.[6] Zittrain, Jonathan, and Edelman, Benjamin. Empirical Analysis of Filtering in China. Berkman Center for Internet & Society Harvard Law School. Boston: Open-


Michael Ma

Net Initiative, 2005.[7] Helft, Miguel & Markoff, John. 13 January 2010. “In Re-buke of China, Focus Falls on Cybersecurity.” The New York Times. Retrieved from <http://www.nytimes.com/2010/01/14/technology/14google.html>.[8] Yunlong, Sun. 2009. “Lee Quits as President of Google China.” China View. Retrieved from <http://news.xinhuanet.com/eng-lish/2009-09/05/content_11999350.htm>.[9] Greenberg, Andy. 16 September 2009. “The Man Who’s Beat-ing Google.” Forbes. Retrieved from <http://www.forbes.com/forbes/2009/1005/technology-baidu-robin-li-man-whos-beating-google.html>.[10] Helft, Miguel. 12 January 2010. “Google Would Abandon a Lucrative Market.” The New York Times. Retrieved from <http://www.nytimes.com/2010/01/13/technology/companies/13hacker.html>.[11] Branigan, Tania. 18 January 2010. “Google Investigates China Staff Over Cyber Attacks.” The Guardian. Retrieved from <http://www.guardian.co.uk/technology/2010/jan/18/china-google-cyber-attack>.[12] Abrams, Steven. “Censorship in China.” Amnesty International USA. Retrieved from <http://www.amnestyusa.org/business_and_Human-Rights/Internet.pago.do1101>.


Few will have the greatness to bend history itself, but each of us can work to change a small portion of events, and in the total of all those acts will be written the history of this generation... It is from numberless diverse acts of courage and belief that human history is shaped. Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current that can sweep down the mightiest walls of oppression

and resistance.

- Robert KennedySubmit to the Journal:E-mail your unpublished articles in from Public Policy, Economics, Political Science, Law & Ethics, and In The Field to [email protected]. Sub-missions are judged anonymously and objectively.



Patenting Of Biotech Research Tools in the Republic of Macedonia: Creating a Sustainable Model of Experimental Use of Exemptions to Patent Infringement

Mirjana Todorovska

Introduction In today’s knowledge based, innovation driven, globalized economy it is presumed that the patent system is an effective incen-tive mechanism for research and develop-ment (R&D) in the field of biotechnology where innovations are supposed to have long gestation periods [1]. The Republic of Macedonia is a small developing country having no particular legislative and public policy aimed towards the growth of the biotech sector. One of the vigorously de-bated topics in the biotech field has been the issue of patenting of biotech research tools. There are two poles of arguments which dominate the academic debate. The first pole of arguments gravitates around the assumption that biotech research tools should be patented because the patent sys-tem acts as an incentive for biotech com-panies to invest in R&D aimed towards development of biotech research tools [2]. It is rational for the patentee to encourage researchers to use the research tool since this is the way of making profit [2]. Thus, it is highly improbable that the patentee will make the use of the tool burdensome through high prices or the withholding of authorization [2]. The second pole of ar-

guments revolves around the premise that patents on biotechnology research tools might impede future research by creating “patent-thickets” and preventing research-ers from performing experiments that rely on patented tools without authorization and royalty payments [3]. Some scholars go even further and argue that because university based researchers typically do not harness the patent system as private sector researchers do, a research exemp-tion should be crafted to cover them [4]. Hence it is of extreme importance for the Macedonian legislator to craft and implement a viable model of experimental use exemptions to infringement of biotech research tools’ patents, in order to entice the endogenous growth of the Macedo-nian biotech sector. Nonetheless it must be noted that a direct causal relationship between the legislative actions and the growth of the biotech sector is a simpli-fied representation of the reality and fur-ther econometric and statistical research is needed in this regard. The law grows out of and follows close-ly the economic reality. On the one hand, since the biotech sector in the Republic of Macedonia is underdeveloped, to this au-thor’s knowledge there are no judicial de-

Mirjana Todorovska

Mirjana Todorovska is a lecturer and a researcher in International Business and Intellectual Property Law at University American College in Skopje, Macedonia. In the past, Mirjana was a Fulbright fellow and a visiting scholar in Intellectual Property and Technology Law at Duke University School of Law. Recently, she has been appointed to serve as a visiting scholar in Intellectual Property and Finances at Duke Sanford School of Public Policy, Center for International Development, where for her research, she received the prestigious Robert McNamara Fellowship from the World Bank Institute in Washington DC. Mirjana also holds an LL.M. in International Business law from Central European University in Budapest, Hungary and an LL.M. in International Intellectual Property Law from Chicago Kent College of Law, Illinois Institute of Technology.


cisions pertaining to experimental use exemptions in the patent law. Thus I assume that there is no per-tinent case law in this regard. On the other hand, the Industrial 3 Property Act of the Republic of Macedonia [5] provides for patent protection of inventions from all technological areas that satisfy the requirements of novelty, inventive step and industrial applicability. Provided that they satisfy the patentability require-ments products consisting of or containing biologi-cal materials and processes for obtaining, processing or use of the said biological materials can become eligible for patenting as well. What seems problem-atic is the fact that the current Macedonian patent law contains one broad exemption to patent rights, i.e. free use for personal and non commercial pur-poses and free use for research and development of the patented invention [5]. The said provisions use obfuscating language and if applied in practice might generate a great deal of confusion and diver-gent judicial practices. Even more problematic seem the Macedonian Industrial Property Act’s provisions which pertain to biotechnology patents and exemp-tions to biotechnology patents and which literally misinterpret the mirroring provisions of the Euro-pean Union Biotech Directive. This paper will argue in favor of amending the current Macedonian industrial property law with a list of specific safeguards that will provide clarity in judicial practice pertaining to experimental use exemptions to biotech research tools patents (This paper uses the term “biotechnology research tool” as a tool used in development of drug products, therapeutic devices or diagnostic methods that do not themselves physically incorporate the tool. The term will be used to encompass resources used by biologists in the drug discovery process, such as: cell lines, monoclonal antibodies, reagents, animal models, growth factors, combinatorial chemistry libraries, clones and cloning tools, methods, labora-tory equipment and machines, databases, and com-puter software. See Report of the National Institute of Health (NIH) Working Group on Research Tools (June 1993), at http://www.nih.gov/news/research-tools/index.htm. Also, the terms “experimental use” and “research” exemption are used interchangeably). On the one hand, the exemptions should be specific and narrow enough in order not to stifle technol-ogy transfer from abroad in the Macedonian biotech sector. On the other hand, the exemptions should create

enough flexibility for public institutions’ basic sci-

ence research and upgrade of technologies to be acquired from abroad. They should also provide incentives for the private sector’s development of downstream biotech solutions. There are a number of ways this could be achieved: (i) restricting the rights that attach to a patent to specific classes of action rather than the more gen-eral “use” or “exploit” where those classes do not include research uses; (ii) amending the definition of infringement in order for research to fall outside the category of infringing behavior; (iii) introducing a compulsory research license; and (iv) including a statutory research use exemption [6]. The model proposed by this paper encompasses two complementary solutions: (i) it proposes inser-tion of another subsection in the Macedonian Indus-trial Property Act named “General Experimental Use Exemption” which will supersede the overbroad and vague Article 91 of the Macedonian Industrial Prop-erty Act; and (ii) it provides guidelines for amending the subsection of the Act pertaining to biotechnolo-gy patent rights and to their exemptions. The details of the proposed amendments to the Macedonian In-dustrial Property Act can be found in Part IV of this paper. The paper consists of five parts. Part I provides an introduction to the problems faced and to the pro-posed model of experimental use exemption to in-fringement of biotechnology research tools patents in the Republic of Macedonia. Part II sets the theo-retical ground for research and gives an overview of the most important theories pertaining to the nature and definition of research tools and an overview of the particular role that the patent system plays with respect to each type of research tools. The general theoretical analysis is then transposed into a more specific analysis of biotech research tools in devel-oping countries. Part III gives an overview and com-parison of ways the experimental use exemptions have been carved out in other legal systems, notably in the USA and in countries of the European Union (hereinafter the EU). The EU countries’ model (the “European”[7] law perspective) is analyzed exten-sively taken into consideration the EU candidate member state status of the Republic of Macedonia and the need to harmonize the Macedonian indus-trial property statutory and case law with the rel-evant EU acquis communautaire and practices of the EU member states’ courts. Part IV deals with the envisaged model of experimental use exemptions to infringement of biotech research tools’ patents in the Republic of Macedonia. Part V deals with an-ticipated benefits, criticisms and concerns related to the proposed model and gives the final remarks.

Patenting of Bioresearch Tools


Patent Law And Biotech Research Tools In The Republic Of Macedonia: Setting The Stage

Patenting Of Biotechnology Research Tools: Gen-eral Nature Of The Legislative And Public Policy Controversies

Biotechnology can be defined as a science using “cel-lular and biomolecular processes in order to solve problems or make useful products [8].” It has become one of the leading innovative and research intensive technologies of the 21st century and a key engine of developed countries’ economic growth. It is a highly lucrative scientific field based on exploiting a myr-iad of techniques such as: recombinant DNA; bio-processing technology; monoclonal antibodies; cell culture; cloning; protein engineering; biosensors; nanobiotechnology and microarrays [9]. Biotech-nology, as a scientific discipline, “has created more than 200 new therapies and vaccines, including products to treat cancer, diabetes, HIV/AIDS and autoimmune disorders.” The most fascinating thing about biotechnology is that its results can have versatile applications across numerous sectors, from health care, therapeutic development, industrial and en-vironmental protection sector (e.g. biofuels) to agricultural production [9]. The biotechnology research process is com-plex and often encompasses both basic scien-tific research (upstream biotechnologies) and applied scientific research (downstream bio-technologies). The biotechnology industry contains diverse commercial and non commercial entities that might have opposing and conflicting interests. How-ever, in modern times, the roles performed by vari-ous biotech industry’s stakeholders become blurry and overlapping as universities and other nonprofit entities begin applying for patent grants, while con-temporaneously, biotech firms start participating in basic scientific research [10]. Due to the complexity of the biotech industry, many scholars have warned against the expansion and invasion of proprietary rights, such as patents, into biomedical research tools’ field. They have feared that such rights might impede academic sci-entific research which, at least in the past, has been driven mainly by social norms and resource alloca-tion strategies that have ignored the main principles of market economics [11]. In some cases, it is be-lieved that this restricted access via patent rights can have negative impact on upstream research or downstream clinical use [11]. For instance, research

tools’ patents may increase the difficulty of obtaining the necessary tools and materials for basic research and increase its cost [11]. There is also a growing concern about the quality and scope of patents is-sued by some national patent offices, particularly in respect of some DNA patents [11].Some argue that oftentimes the novelty and inventive step criteria are not being met, and that broad patents are issued that could give the patentees a strong negotiating position in licensing deals [11]. Heller and Eisenberg refer to this problem as a “tragedy of the anticommons” [12] which can occur when “multiple owners are each en-dowed with the right to exclude others from a scarce resource, and no one has an effective privilege of use. When too many owners hold such rights of exclu-sion, the resource is prone to underuse - a tragedy of the anticommons[13].” To date there is a handful of quantitative studies indicating negative impact of biotechnology patents on scientific research activity

[13]. However, the qualitative impact of the afore-mentioned studies on the norms of scientific inquiry and on institutional culture throughout the globe, as more and more countries adhere to international treaties regulating intellectual property and biotech-nology, might turn out to be very significant [14]. This paper uses the term “biotechnology research tool” as a tool used in development of drug products, therapeutic devices or diagnostic methods that do not themselves physically incorporate the tool. The term will be used to encompass resources utilized by biologists in the drug discovery process, such as: cell lines, monoclonal antibodies, reagents, animal mod-els, growth factors, combinatorial chemistry librar-ies, clones and cloning tools, methods, laboratory equipment and machines, databases, and computer software [15] Thus I define biotechnology research tools in their broadest meaning as “inputs in the de-velopment of further biotech applications” [16]. Research tools, in general, are located upstream from the development of applied technologies and

Mirjana Todorovska

Flag of Mecedonia [Source: Wikimedia Commons]


downstream innovations, e.g. new drugs. Scientific researchers are considered consumers of research tools and therefore many authors refer to research tools as “enabling technologies” [17] or “platform technologies” [17]. Professor Dreyfuss [18] argues that the nature of biotechnological innovation is changing and many inventions in the field of bio-technology have immediate commercial applica-tion as diagnostics or treatments. An example is the utilization of BRCA 1 test by a scientist wanting to study the nature and genetics of the breast cancer [18]. This research tool has been patented and it has been difficult to be utilized by scientists for fur-ther experiments without impinging on the rights of Myriad, the patentee [19]. Surprisingly, a recent decision by Judge Robert W. Sweet of the Southern District of New York ruled in favor of the plaintiffs in Association of Molecular Pathology v. U.S. Patent and Trademark Office [20], granting partial sum-mary judgment that the claims of several patents on BRCA1 and BRCA2 were invalid as encompassing non statutory subject matter pursuant to 35 U.S.C § 102 [20]. The impact of this decision remains to be seen, because it was made in a district court thus having small value as a precedent, and does not ap-ply to other gene patents apart from the ones it con-sidered [20].

Biotech Research Tool Patents In The Republic Of Macedonia: Current Economic And Legal Param-eters

Economic Parameters: Biotech Market Indicators In The Republic Of Macedonia

In terms of development economics, acquiring knowledge based biotech research tools can be dif-ficult for a small developing country such as the Re-public of Macedonia. As a general rule, unsuccessful technology transfer policies in developing countries might come as a result of: (i) Lack of supply of and demand for qualified human resources (social and human capital); (ii) Problems associated with the knowledge base (research capacity); (iii) Problems associated with the ability to innovate (technology and innovation performance); and (iv) Problems as-sociated with the capacity of markets to absorb and diffuse innovations (absorptive capacity) [21]. A study conducted by the Ss. Cyril and Methodius University Business Start-up Centre, Skopje, Mace-donia shows that the R&D share in the Macedonian GDP in 2003 was 0.22 %, compared to Serbia’s 0.32 %, Bulgaria’s 0.5 % and Croatia’s 1.10 % [21]. Al-though in the above mentioned countries this per-

centage has been constantly increasing, Macedonia has experienced a downward trend. The Macedo-nian R&D expenditures primarily come from either the higher education (60.2%) or the governmental sector (34.1%), with only 5.7% coming from the busi-ness sector compared to the EU practice where the business sector participates with 65.3% [21]. In 2007, there were only 17 biotechnology research projects (12 in the applied research sector and 5 in the basic research sector) out of 185 in total in the Republic of Macedonia. All of them were funded by state minis-tries and agencies (15 by the Ministry of Education and Science and 2 by other state agencies) [21]. Biotechnology has been one of the most lucrative industries contributing towards growth of modern, innovation driven, sustainable societies. However in these tumultuous financial times the developed countries’ biotech companies, such as the ones from the US and the EU, are reinventing their business models in order to remain sustainable [22]. This re-inforces the finding that creation of adequate public and legislative policies aimed at rapid growth of the Macedonian biotech industry sector is a conditio sine qua non for the economic and overall social de-velopment of Macedonia. Legislative and public policies favoring strong patent rights in the field of biotechnology research tools can impede upstream technologies‟ innova-tions. However, lax and inadequate patent protec-tion might stifle incentives to construct research tools. Therefore, appropriate balance must be struck [6]. Even more challenging is the endeavor to strike an appropriate balance in the field of biotechnology research tools’ patents for small developing coun-tries, such as the Republic of Macedonia, which have scarce capital resources and inadequate legal and institutional infrastructure [23]. On the one hand, it is highly disputable if today’s globalized world is diminishing the economic, institutional and overall socio cultural gaps that exist between “developed” and “developing” countries [24]. On the other hand, undisputable is the fact that most of the biotechno-logical R&D, human resources and financial capital are concentrated in developed countries, led and operated by big multinational corporations which respond to the global market demand dominated by high income countries’ consumers [25]. Undis-putable is also the fact that developed countries, led by the USA and the EU, are global biotechnol-ogy exporters [26]. This conclusion is strengthened furthermore when one analyzes the economic and managerial structure of the biotech industry on a global level [27]. First, big biotech companies origi-nating in developed countries usually charge high



royalties for licensing their biotechnology research tools to companies originating from developing countries [27]. Second, oftentimes biotech research tool patent holders from developed countries lack the incentive to market the technology to devel-oping countries’ firms due to possibility of liability problems or possible bad public relations [27].Third, they will be reluctant to license to firms from coun-tries having weak intellectual property protection and enforcement [27]. The main question, then, in the context of biotech research tools and their use in small developing countries is how to legislate for ad-equate and balanced experimental use exemptions. The latter, on the one hand, should be specific and narrow enough in order not to stifle biotechnology transfer from abroad, and on the other hand should create enough flexibility for public institutions’ ba-sic science research and upgrade of biotechnologies acquired from abroad. They should also provide in-centives for private sector’s development of down-stream biotech solutions. The underlying hypothesis of this paper is that public policy and legislative solutions pertaining to experimental use exemptions to patent infringement of biotechnology research tools’ patents in the Re-public of Macedonia should take into consideration the highlighted differences between developing and developed countries [28]. In order to craft a sustain-able model in this respect this paper distinguishes between two dimensions of research tools: “comple-mentary versus independent in use and knowledge based versus information based” following the ma-trix developed by Julien Pénin and Jean Pierre Wack, innovation economics researchers at BETA, Univer-sité Louis Pasteur, Strasbourg [6]. Depending on the context of use and the nature of research tools, pat-ents might act as inhibitors or promoters of scientific research. An independent research tool can be used by itself into the development of an application. On the other hand, complementary research tools must be used in combination with other research tools, and therefore have no independent value to the user [6]. This creates a complex situation where develop-ers using complementary research tools will have to interact with numerous complementary research tools producers [6]. Information based research tools [6] share the characteristics of public goods: nonex-cludability and nonrivalrous consumption. Hence R&D in information based research tools lacks in-centives on behalf of biotechnology developers be-cause these research tools can be easily appropriated and disseminated. As soon as research tools are as-similated into knowledge, the public good problem disappears, because knowledge is sticky, embodied

within its holder and other stakeholders might ben-efit from it after a lengthy process of transmission and assimilation. Accordingly, Penin and Wack pro-pose that information based research tools do need patent protection unlike knowledge based research tools that are difficult to appropriate [6]. As we shall see, in Part IV, the application of this hypothesis is questionable in a small developing country’s setting such as the Republic of Macedonia.

Legal Parameters: Main Provisions Of The Macedo-nian Industrial Property Act Pertaining To Biotech-nological Inventions

As previously noted, the Republic of Macedonia is a small developing country having no particular legislative and public policy with respect to biotech research tools’ patents. The Industrial Property Act provides for patent protection of inventions from all technological areas that satisfy the requirements of novelty, inventive step and industrial applicabil-ity [5]. Provided that they satisfy the patentability requirement, products consisted of or containing biological materials and processes for obtaining, processing or use of the said biological materials can become eligible for patenting as well [5]. The cur-rent Macedonian patent law provides for one exces-sively broad exemption to patent rights, i.e. free use for personal and non commercial purposes and free use for research and development of the patented in-vention [5] These provisions are vague, broad and if implemented and applied by the Macedonian courts might generate divergent judicial practices. An in depth analysis of the legal and public policy issues related to experimental use exemptions to infringement of biotech research tools’ patents in the Republic of Macedonia presupposes analysis of the compliance of Article 91 of the Macedonian In-dustrial Property 17 Act [5] with the WTO TRIPS Agreement Article 30 [29] which deals with curtail-ments to exclusive patent rights.

1. Compliance With Trips Article 30

Article 91 of the Macedonian Industrial Property Act [5] pertains to free use of the invention under certain circumstances and on its face is broad, vague and cannot be considered a “limited exception to patent rights” under Article 30 of the WTO TRIPS Agreement [29]. Article 30 of the TRIPS Agreement stipulates that:

“Members may provide limited exceptions to the exclusive rights conferred by a patent, provided

Mirjana Todorovska


that such exceptions do not unreasonably conflict with the normal exploitation of the patent and do not unreasonably prejudice the legitimate inter-ests of the patent owner, taking account of the le-gitimate interests of third parties” [29]

Article 30 of the TRIPS Agreement is a general provision and does not refer specifically to the issue of experimental use exemption. Thus standard legal practice is to refer to the case law of the WTO Dis-pute Settlement Body (DSB). More specifically, the WTO DSB’s seminal 18 decision with regard to Canada’s regulatory approval exemption for patents established the standard for a limited patent exemption which can be promulgat-ed in the national law of a WTO Member Country and the test for its compliance with Article 30 of the TRIPS Agreement [30]. The DSB Panel concluded that Article 30 of the TRIPS defines three separate criteria that need to be satisfied cumulatively [30]. The Panel found that the word “limited”, as a first criterion, should be evaluated against “the extent to which the exclusive rights of the patent owner have been curtailed” [30]. In doing this the focal point of analysis should be “which legal rights have been curtailed, rather than the size or extent of economic impact” [30]. The Panel found that the word “nor-mal exploitation”, as a second criterion imposed by TRIPS Article 30, should be read as an exclusion of “all forms of competition that could detract signifi-cantly from the economic returns anticipated from a patent’s grant of market exclusivity” [30]. The Panel referred specifically to the experimental use exemp-tion when discussing the third criterion of TRIPS Article 30, i.e. “legitimate interests” [30]. The Panel reasoned that this criterion should be interpreted according to the way it is usually used in legal prac-tice, namely as a “normative claim calling for pro-tection of interests that are “justifiable” in the sense that they are supported by relevant public policies or other social norms” [30]. The most prominent “justi-fiable” interest in this sense, according to the Panel, is the Article 30 type exemption widely adopted in national laws, i.e. “the exception under which use of the patented product for scientific experimen-tation, during the term of the patent and without consent, is not an infringement” [30]. Panel went on by stating that the key public policy rationale be-hind patent laws is “to facilitate the dissemination and advancement of technical knowledge and that allowing the patent owner to prevent experimental use during the term of the patent would frustrate part of the purpose of the requirement that the na-ture of the invention be disclosed to the public” [30].

Thus, both society and the scientist possess a “legiti-mate interest” in utilizing the information disclosed in patent application in order to promote science and technology [30].The Panel did not draw any fi-nal conclusion as to the level of compliance of the experimental use exemption proscribed by WTO Member States national laws with TRIPS Article 30 [30]. However, the Panel did use the general mean-ing of the term “legitimate interests” contained in a legal analysis that supports the proscription of ex-perimental use exemptions by national laws of the WTO Member States [30]. Thus the Panel implicitly acknowledged the importance of proscribing ad-equate and balanced experimental use exemptions within the WTO Member States‟ national patent laws for “dissemination and advancement of techni-cal knowledge” [30]. Even though this was not specifically addressed by the Panel in its “Canada decision”82, it would be reasonable to conclude that this type of exemption is limited in its character, since it applies only to one of five patent rights enshrined by TRIPS Article 28(1) [29]. Under TRIPS 20 Article 30 experimental use exemption, it is only use which as an act is permis-sible, other acts such as offering for sale, selling and


A bottle of prescription drugs. [Source: Wikimedia Commons]


importing are not [31]. In order to accommodate for the economic, tech-nological and overall societal gaps between develop-ing and developed countries, I would argue that Ar-ticle 30 of the TRIPS should be read in accordance with TRIPS Article 7 [29] and Article 8(1) [29]. Hence the developing countries when implement-ing the WTO’s TRIPS Article 30 should be allowed more flexibility in crafting experimental use exemp-tions to research tools’ patent rights, all in the name of “social and economic welfare, and […] a balance of rights and obligations” and in the name of promot-ing “the public interest in sectors of vital importance to their socio-economic and technological develop-ment, provided that such measures are consistent with the provisions of this Agreement” [29]. Applying the aforementioned analytical matrix to Article 91 of the Macedonian Industrial Property Act 88 it can be concluded that this provision on its face [29]: (i) is not a limited exception, (ii) unreasonably conflicts with the normal exploitation of the patent and (iii) unreasonably prejudices the legitimate in-terests of the patentee, even when the legitimate in-terests of third parties are taken into account. There-fore, it needs to be rewritten in accordance with the model analyzed, outlined and proposed in Part IV of this paper.

2. Biotechnology Patents Under The Macedonian Industrial Property Act

Article 25 of the Macedonian Industrial Property Act stipulates that if the patentability requirements are fulfilled, inventions related to a product that consists of or includes biological material [32]; or a method for obtaining biological material, its processing, or its use, are patentable [5]. The human body in vari-ous phases of its formation and development or the simple discovery of one of its elements, including a sequence or partial sequence of a gene, is excluded from patentability [5]. However, an exception to this is possible if the patent application does not relate to any of that subject matter, in and of itself [5]. In addition, an element isolated from the human body or produced with the help of a technical process that includes a sequence or a partial sequence of a gene [5] can be protected with a patent even when the structure of the said element is identical to the structure of the natural element, in which case the industrial applicability must be contained in the de-scription of the application for the invention [5]. Article 90 of the Macedonian Industrial Property Act [5] contains provisions pertaining to exclusive biotechnology patent rights. Article 96 [5]deals spe-

cifically with exceptions to biotechnology patent rights. On its face, the provisions of the Macedonian Industrial Property Act pertaining to biotech inven-tions indicate that the Macedonian legislator had followed closely the provisions of the EU Biotech Directive. However, as I will show in Part IV(B) of this paper, these provisions misinterpret the mirror-ing provisions of the European Union Biotech Direc-tive [5] Moreover, they are contrary to Article 28(1) [29] of the WTO TRIPS Agreement and to Article 3 and Article 8 23 of the EU Biotech Directive [5]. If applied in practice they might generate divergent judicial practices. When interpreting the provisions of the Macedo-nian Industrial Property Act pertaining to biotech patent rights and their exemptions, one should bear in mind the sensitivity of the issues of gene patenting in the European Union countries. This is important since the Macedonian legislator is trying to follow closely the provisions of the EU Biotech Directive. The official stance of the EU countries is that there are “no differences between DNA sequences and chemical substances which would justify different treatment as regards the scope of patent protection” [5]. Yet, a hot topic among the Europeans is the is-sue of whether human gene sequences should be given different treatment to chemical substances on ethical grounds [5]. Another hotly debated theme related to the implementation of the EU Biotech Directive is the following economic question: “is it more valuable to society to allow the first inventor a broad scope of protection so others which build on this invention should have to seek a licence, or should a patent on a gene sequence be limited in scope to allow future uses of such sequences to be patented freely?” [5] The EU experts agree that there is a scarcity of economic studies in this regard [29]. Moreover, they do not relate exclusively to gene se-quence patents [29]. The European Commission has launched a study that analyzes the “extent of human DNA patenting in Europe and its potential conse-quences on research and innovation” [29].

What Can the Republic Of Macedonia Learn from the EU and the US: How The Experimen-tal Use Exemptions Have Been Carved Out in Their Legal Systems (Emphasis on Biotech Re-search Tools)

Academics putting forward arguments against ex-perimental use exemptions to infringement of bio-tech research tool patents argue that patents do not prohibit the usage of biotech research tools, they merely add up to the costs of doing research, because

Mirjana Todorovska


scientific researchers must pay the commercial price [33]. This contributes towards effective allocation of resources and provides for adequate and sufficient investment level in the field of biotech research tools [33]. This argument, which might be applicable to developed countries, becomes moot when applied to the economic and legal matrix of small develop-ing countries such as the Republic of Macedonia. Why is this so? The basic assumption of the clas-sical economics theory is that the market (through the faultless functioning of the invisible hand) and the price mechanism will signal the monetary val-ue of the biotech research tools and give both the right holders and the end users access to the benefits guaranteed by the law [34]. One crucial question that should be asked in this regard is: What happens in the case of the Macedonian biotechnology market where the invisible hand is invisible simply because it is not there? [35] Alternatively, academics advocating in favor of experimental use exemptions to infringement of biotechnology research tools patents highlight the adverse effects of patents as monopoly rights. First, they contend that the patent system should remain but exemptions should be allowed, acting like a sub-sidy which in the end will provide relief from exor-bitantly high and prohibitive monopoly prices [36]. Since the scientific research by nature is cumulative, multiple licensing agreements usually are negoti-ated and this adds up to the transaction costs and causes deadweight losses to the society as a whole [36]. Second, most scientific research is subject to fundamental uncertainty, i.e. past events‟ informa-tion cannot be used to form statistical probabilities over the outcomes of future events, since each event is so distinctive and novel [37]. Since it cannot be known ex ante which scientific pathways will be effective and productive, the greater the user and transactions costs associated with each pathway, the greater is the possibility that some important (but not as yet known as being important) research will not be undertaken [37].Quantitative and qualitative research data support-ing the arguments in favor of broad experimental use exemption is not abundant and usually shows that such exemptions cannot be brought into direct correlation to intensity and breadth of patent pro-tection [38]. For instance, interviews of researchers by Walsh, Arora and Cohen find some anecdotal evidence of patent owners “blocking” research tra-jectories [38]. An example of the controversy surrounding the patenting of biotech research tools and the latter’s versatile nature is the story of the Harvard Onco-

Mouse. In the early 1980s, Harvard Medical School’s scientists inserted a gene into a mouse embryo which made the mouse highly susceptible to cancer. The result was a research tool useful for all scientists performing cancer related research. Harvard patent-ed the OncoMouse and licensed it to DuPont. The company then aggressively marketed the research tool and enforced its property rights [39]. These developments fly directly into the face of the concept of “open science” where information should be freely accessible and openly disseminat-ed. A myriad of options is available to address the problems outlined above. These range from a statu-tory exemption to non-legal solutions such as the creation of publicly accessible databases. Experimental use exemptions act as subsidies, i.e. legal fictions that provide safeguards and incentives for scientific research, and are used for multitude of purposes such as: collecting of information; ex-tending or improving the invention within the same technological trajectory; applying or adapting the invention within a different technological trajectory; inventing around the patent; or expanding knowl-edge in broadest terms [40]. In the subsections discussed below I am analyz-ing the relevant legislative and judicial solutions pertaining to experimental use exemptions to patent infringement in the US and the EU and then coming up with a proposal for specific set of experimental use exemptions in the area of biotech research tool patents in the Republic of Macedonia.

Us Law Perspective (Legislative And Judicial Solu-tions)

The experimental use exemption is a creature of the US case law [41] and it is severely limited due to the effect of two seminal decisions: Roche Products Inc v Bolar [42] and Madey v Duke University [43].In Roche Products Inc v Bolar [42], the Federal Cir-cuit made clear the narrowness of the exemption, finding that the experimental use defense could not be interpreted “to allow a violation of the patent laws in the guise of “scientific inquiry”, when that inquiry has definite, cognizable and not insubstantial com-mercial purposes” [42].The court found that the ex-emption was limited to experiments “for amusement, to satisfy idle curiosity, or for strictly philosophical inquiry” [42] and did not extend to use for business purposes [42]. One year after Bolar, i.e. 1984, the US Congress passed the Hatch Waxman Act which pro-vides for faster marketing approval for drugs that are bioequivalent to approved drugs and a patent term



extension equivalent to the time lost during manda-tory regulatory approval process [44]. This Act effec-tively superseded the Roche v Bolar decision. It has to be noted that the research exemption (known as the FDA or the “Bolar” exemption) created by Sec-tion 202 of this Act is industry specific and pertains only to biomedical research undertaken to obtain governmental regulatory approval under the Federal Food, Drug and Cosmetic Act [45]. Thus the “Bolar” exemption created by the Hatch Waxman Act is not envisaged to act as a complete substitute to the com-mon law research exemption [46]. Two strings of judicial interpretations emerged under 271(e)(1). The first string of decisions enter-tains the subject matter boundaries under 271(e)(1). This issue has been decided by the US Supreme Court in its Eli Lilly decision [47], holding that “pat-ented invention” under 271(e)(1) encompasses all categories of FDA regulated products. The second string of decisions pertains to the array of permis-sible activities under 271(e)(1). Iles, a scholar re-searching the issue of experimental use exemptions in patent laws across different jurisdictions, comes to the conclusion that the phrase „solely for uses rea-sonably related to in 271(e)(1) was interpreted by US courts in two possible ways: (1) the word “solely” can be used to limit the word “uses”; or (2) “solely” might limit the listed activities: make, use, offer to sell, or sell [48]. The Federal Circuit decision of Madey v Duke [43] confirmed the earlier cases’ line of reasoning which had made clear that the experimental use defense to patent infringement under US patent law was nar-row, and that “use in keeping with the legitimate business of the alleged infringer does not qualify for the experimental use defense” [43]. The Federal Cir-cuit also held that “the profit or non-profit status of the user is not determinative” [43]. The Federal Cir-cuit in its seminal decision determined the contours

of the experimental use exemption: Whether the Duke University’s use of Madey‘ patent was “solely for amusement, to satisfy idle curiosity, or for strict-ly philosophical inquiry”[43] or whether the Univer-sity’s use has “definite, cognizable, and not insub-stantial commercial purposes” [43]. These findings have been criticized, as one possible understanding of the case renders the experimental use defense unavailable to research institutions simply because their legitimate business is research. Thus in the post Madey era universities can no longer rely firmly on experimental research exemption to patent infringe-ment when conducting scientific research, unless the latter is for “mere amusement, idle curiosity or philosophical inquiry” [43]. Critics also argue that the Federal Circuit’s decision will have a significant chilling effect on academic research and fails to recognize adequately that the purposes of the patent system include facilitating research into patented subject matter by persons other than the patent holder [49]. In light of this, the National Re-search Council of the National Academies under-lined that a “reasonable interpretation” of this case is that “formal research enjoys no absolute protection from infringement liability regardless of the institu-tional venue, the purpose of the inquiry, the origin of the patented inventions, or the use that is made of them” [50]. In order to soften the harshness and the narrow-ness of the Federal Circuit’s decision in Madey v. Duke [43] the American Intellectual Property Or-ganization (AIPLA) has proposed that the following activities are exempted from patent infringement:

(1) evaluating the validity of the patent and the scope of protection afforded under the patent; (2) understanding features, properties, inherent characteristics or advantages of the patented sub-ject matter;

Mirjana Todorovska

Map of Europe and the United States [Source: Wikimedia Commons]



(3) finding other methods of making or using the patented subject matter; and (4) finding alternatives to the patented subject matter, improvements thereto or substitutes therefore [51].

The issue of common law experimental use exemp-tion under the US law generates controversial and highly divided and contradicted opinions among legal and economic scholars to date, even though the empirical study conducted by Cohen and Walsh [52] two years after Madey v. Duke [43] suggests that its impact on the way universities perform their research is insignificant.

“European” Law Perspective (Legislative and Judi-cial Solutions)

There is no uniform “European approach” to patent infringement de lege lata. A patent issued under the European Patent Convention (EPC) [53] is not a uni-form and single European patent but merely a “bun-dle” of national patents issued in a unified granting procedure. Article 64(3) of the EPC [53] stipulates that an infringement suit under an EPC patent must be brought in national court under the patent law of the relevant member state. Therefore, experimental use, as a defense to patent infringement, is an issue that has to be decided under national law. A plaintiff enforcing a patent in more than one member state may need to bring multiple parallel law suits with potentially differing outcomes, depending on the relevant member state’s body of law governing in-fringement and the scope of the experimental use exemption [54]. Most EU countries have statutory exemptions that implement Article 31(b) of the Community Patent Convention (hereinafter CPC). The Article states that: “The rights conferred by a Community patent shall not extend to: […] (b) acts done for ex-perimental purposes relating to the subject-matter of the patented invention” [55]. Since the wording of Article 31 (b) CPC [55] is very broad, the courts of a number of EU countries have interpreted its meaning. Consequently, this has created divergent judicial practices and gener-ated great deal of discrepancy in the scope of the exemption across the EU. For instance, the German courts have taken a flexible approach to the experi-mental use exemption. Two famous decisions of the German Supreme Court in Klinische Versuche I and Klinische Versuche II [56] (Clinical Trials I and II) illustrate the German “lenient” approach to experi-mental use defense to patent infringement when

compared to the US common law doctrine of ex-perimental use exemption [56]. As a result of these decisions the German Supreme Court has held that “experiments or trials were permitted on a patented substance … both to test its claimed properties and to test for indications different from those claimed, insofar as the experiments were directed to the sub-stance itself” [56]. This position of the German Su-preme Court was reaffirmed by the German Consti-tutional Court’s decision brought in the year of 2000 [57]. Although the CPC never came into force, it has had an influential role in the development of pat-ent legislation in the EU member states. As a result, Article 31(b) of CPC [57] has been widely imple-mented into the national patent statutes of the EU member states. In the EU countries, the experimental use ex-emption allows experimentation related to the sub-ject matter of the invention [54]. Difference is made between experiments that are on the invention and experiments that use the invention. Consequently, an experiment directed at obtaining new informa-tion on a patented research tool is exempted from li-ability, for example, to determine its suitability to be used for a new purpose or to find out properties of modifications [54]. However, the German Supreme Court Clinical Trials I decision explicitly states that the experimental use exemption does not extend to uses “which make the invention the means for ex-perimental acts” [54]. Hence the use of a patented biotechnology research tool, irrespective of the fact whether it is conducted by a non commercial or commercial institution, in accordance to the purpose disclosed in the patent application does not fall under the experimental use exemption as defined by the German Supreme court [54].

Creating a Macedonian Model of Experimental Use Exemptions to Infringement of Biotech Re-search Tool Patents

Ideally, the Macedonian public policy and legislative model pertaining to experimental use exemptions to infringement of biotech research tools should take into consideration several factors. First, the legislator should look into the purpose of the exper-imentation, i.e. whether it is on a patented inven-tion or it is a research aimed at using the patented biotechnology research tool. Second, it should look at the technical, scientific and commercial motiva-tions behind the experimentation, e.g. the higher the sum invested, the higher the likelihood that an


Mirjana Todorovska

experimental use exemption should not be awarded by the competent authorities [58]. Third, it should look at the nature of the institution conducting the experimental research, (commercial or noncommer-cial) [58]. The model envisaged by this paper encompasses two complementary solutions: (i) it proposes inser-tion of another subsection in the Macedonian Indus-trial Property Act named “General Experimental Use Exemption” that will supersede the overbroad and vague Article 91 of the Macedonian Industrial Prop-erty Act; and (ii) it provides guidelines for amending the subsection of the Act pertaining to biotechnol-ogy patent rights and to their exemptions. Following the matrix developed by Penin and Wack [6] one can easily determine a model of ex-perimental exemptions to patent infringement of biotech research tools. However the aforementioned matrix divide into information and knowledge based research tools becomes blurry if applied to the Macedonian biotechnology sector. My assumption is that in a setting where the human capital overall is not accumulating, but on the contrary is dissipating , where the only R&D in biotechnology projects comes from the public agricultural sector [59], it is not the knowledge but also the information that becomes a scarce resource and is therefore sticky, not read-ily ascertainable and cannot be easily appropriated. Thus the matrix proposed by Penin and Wack [59] bears an inherent anomaly if applied to small devel-oping countries such as the Republic of Macedonia. Its basic postulate that knowledge based research tools need not be patented because the knowledge is sticky and not easily accessible should be extended to information based research tools because they be-come scarce in Macedonian biotechnology context and therefore need not be patented as well. However disconcerting it might seem, the Macedonian bio-technology sector is underdeveloped [59].As is, it encompasses only agricultural biotechnology proj-ects that are funded by state agencies [59]. In order to entice the development of this particular sector, at minimum, the public research in the Macedonian agricultural biotechnology sector should be free of any patent thickets and anti commons. Modest ex-pectation of this paper is that the model proposed below would represent an incremental step in this respect.

Crafting a “General Experimental Use Exemption”

As already analyzed supra in Part II(B)(2)(i) of this paper, Article 91 of the Macedonian Industrial Prop-erty Act is on its face contrary to Article 30 of the

TRIPS Agreement and needs to be amended [59]. This paper argues in favor of establishing a “General Experimental Use Exemption” that will supersede the current Article 91 of the Macedonian Industrial Property Act [6]. On the one hand, this exemption should be narrow enough in order not to stifle tech-nology transfer from abroad if applied in practice. On the other hand, this exemption should create enough leeway for public institutions’ basic science research and upgrade of technologies acquired from abroad. As previously argued, Article 30 of the TRIPS should be read in accordance with TRIPS Article 7 and Ar-ticle 8(1) [29]. This in turn will affect the scope of the envisaged “General Experimental Use Exemption” and accommodate for the outlined economic reality of the Republic of Macedonia [29]. Even so it must be noted that a direct causal relationship between the proposed legislative action and the growth of the overall R&D sector in the Republic of Macedonia is a simplified representation of the reality and further econometric and statistical research is needed in this regard. Even more simplified is the assumption that the envisaged “General Experimental Use Exemp-tion” would have any impact on the development of a sustainable biotech sector in the Republic of Mace-donia. However, based on other quantitative stud-ies of the biotech sector growth in small developing countries [28], I assume that the proposed provision would have at least a small positive impact on the Macedonian biotech sector growth. Nonetheless it is prudent to conclude that this assumption should be tested by econometric models in order to be con-firmed. In light of the above, I propose the “General Ex-perimental Use Exemption” as an amalgam of vari-ous models of experimental use exemptions to bio-tech research tools’ patents. The suggested “General Experimental Use Exemption” tries to factor in dif-ferent variables of a small developing country’s legal and economic setting, such as the one of Republic of Macedonia. The proposed provision will stipulate that:

(1) The rights of a patentee are not infringed by acts done for experimental purposes relating to the subject matter of the invention that do not un-reasonably conflict with the normal exploitation of a patent. Acts done for experimental purposes relating to the subject matter of the invention in-clude: (i) determining how the invention works; (ii) determining the scope of the invention; (iii) determining the validity of the claims; and (iv) seeking an improvement related to the subject matter of to the invention. (2) In determining the nature of the use the court



will apply the following factors: (i) whether the ex-perimentation is on a patented invention and/or is research involving the use of a patented invention; (ii) the purpose or intention of experimentation or research, in terms of its technical, scientific or commercial motivations; (iii) the technical, scien-tific or commercial outcomes of experimentation or research; and (iv) the nature of the organiza-tion conducting the experimentation or research, for instance whether the organization is a com-mercial or not for profit entity [60].

Guidelines for Amending the Subsection of the Act Pertaining to Biotechnology Patent Rights and to Their Exemptions

Having taken a more detailed look at the “General Experimental Use Exemption”, I know turn to pro-posing specific guidelines for amending the subsec-tion of the Macedonian Industrial Property Act per-taining to biotechnology patent rights and to their exemptions. Certain provisions of the Act should be rewritten in order to bring in more clarity, i.e. (i) provisions pertaining to exclusive rights of the pat-ent holder; (ii) provisions pertaining to exclusive rights of the biotech patent holder (it is not clear if and when genetically engineered organisms/gene sequences are patentable?); (iii) provisions pertain-ing to exclusive patent rights in the biotechnology domain. At first blush, the provisions of the Macedonian Industrial Property Act pertaining to biotech inven-tions indicate that the Macedonian legislator had followed closely the provisions of the EU Biotech Directive. Accordingly, Article 25 (patentable sub-ject matter)[5], Article 90 (exclusive patent rights in biotechnology) [5] and Article 96 (exemptions to biotechnology patents)[5]of the Macedonian Indus-trial Property Act mirror Article 3(1), Article 5(2), Article 8, and Article 9 of the EU Biotech Directive [61]. However, the abovementioned provisions of the Macedonian Industrial Property Act are scat-tered throughout the whole text of the Act, making it extremely difficult to follow [5]. Moreover, under the current Macedonian Industrial Property Act (Article 90), a biotech patent holder does not have all of the exclusive patent rights enumerated under Article 89 of the same Act [5]. This does not make sense and is contrary both to Article 28(1) of the WTO TRIPS Agreement and to Article 3 and Article 8 of the EU Biotech Directive [61]. For the sake of simplifying the things I would ar-gue, first and foremost, that the relevant part of the Macedonian Industrial Property Act dealing with

biotech patent rights should be amended. In order to achieve clarity and simplicity the Macedonian legisla-tor should do nothing more than follow the structure of the EU Biotech Directive.179 Likewise, it would be helpful if the Macedonian legislator defines the main terms encompassed by biotechnology patents, such as: (i) biological material; (ii) biological process and (iii) microbiological process. Again, the adequate definitions provided in Article 2 of the EU Biotech Directive [61] can be of guidance in this respect. Ad-equate structuring and clustering of the Macedonian Industrial Property Act provisions pertaining to bio-tech patents will contribute towards adequate under-standing of the current biotech patent rights exemp-tions proscribed by the Macedonian legislator. These exemptions (pertaining solely to plant and livestock breeders) will make sense and will be applicable in practice only if they are linked to appropriate, fully encompassing biotech patent rights [5].

Anticipated Benefits, Criticisms and Concerns Related to the Proposed Model

I anticipate that the proposed model would generate the numerous identifiable benefits. First, it will clar-ify the available biotechnology patent rights under the Macedonian Industrial Property Act by stipulat-ing specific experimental use exemptions to infringe-ment of biotechnology research tool patents and, consequently it will reduction the legal uncertainty. Second, it will ensure compliance of Macedonian industrial property law with international obliga-tions under Article 28(1) and Article 30 of the WTO TRIPS Agreement. Third, it will ensure compliance of the Macedonian industrial property law with the EU acquis communautaire and the practice of the EU member states’ courts pertaining to the experimental use exemptions to infringement of biotech research tools. Fourth, it might lead to optimization of the to-tal levels of biotechnology innovation via an appro-priate balance of rights in the biotechnology research tools patents’ sector. Fifth, it will provide space for sufficient flexibility to the courts so that they may reach appropriate and balanced decisions. On the other hand, the implementation of the pro-posed model into the Macedonian Industrial Proper-ty Act might face several identifiable legitimate con-cerns. First, there is a certain degree of uncertainty over the boundaries of the general exemption which can only be established over time through case law. Second, the proposed model is not in harmony with the current industrial property law of the Republic of Macedonia, and thus burdensome legislative and ad-ministrative machinery should be activated in order


to legislate and implement the proposed solutions. Third, there are some transactional costs that might be incurred by the proposed model’s implementa-tion, as both domestic and foreign patent holders and researchers must become familiar with the clari-fied law. Fourth, inherent to this proposal is the risk of unforeseen, detrimental effects and loopholes that might be created by incorporating and implementing the proposed model into the Macedonian industrial property law and judicial practice referring to it. I do believe that the Republic of Macedonia has a lot to learn with respect to biotechnology research tools’ patents and exemptions to their infringement from both the US and the European Union. How-ever, copying other countries’ “successful” systems in this respect would be a short sighted solution. Hence we have to devise a system on our own. In doing this we should rely on the successful models developed by others, but not blindly. My modest expectations are that this paper, at its worst, will stimulate the much needed academic discourse in the Republic of Macedonia on the prob-lems related to the biotech industry and, at its best, will contribute towards the implementation of a sus-tainable model of experimental use exemptions to infringement of biotech research tool patents.-----------------------------------------1] Kyung-Nam Kang, Tae-Kyu Ryu and Yoon-Sik Lee, Effects of re-search tool patents on biotechnology innovation in a developing country: A case study of South Korea, BMC Biotechnology 2009, 9:25, at http://www.biomedcentral.com/1472-6750/9/25. [2] Katherine J. Strandburg, What Does the Public Get? Experimental Use and the Patent Bargain, WIS. L. REV. 81 (2004); Lara J. Glasgow, Stretching the Limits of Intellectual Property Rights: Has the Pharma-ceutical Industry Gone Too Far?, 41 IDEA 227, 228-29 (2001); Advi-sory Council on Intellectual Property, Australia (ACIP), Patents and Ex-perimental Use Options Paper 18 (Dec. 2004), at http://www.acip.gov.au/library/Experimental%20Use%20Options%20Paper%20A.pdf; See Heather Hamme Ramirez, Defending the Privatization of Research Tools: An Examination of the ‘Tragedy of the Anticommons’ in Biotechnology Research and Development,53 EMORY L.J . 359, 362 (2004); F. Scott Kieff, Facilitating Scientific Research: Intellectual Property Rights and the Norms of Science - A Response to Rai and Eisenberg, 95 NW. U. L. REV. 691 (2001). 2 [3] Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 SCI. 698 (May 1, 1998); NRC (National Research Council): Intellectual prop-erty rights and research tools in molecular biology. Washington, DC: National Academy Press; 1997. [4] John P. Walsh, Ashish Arora, & Wesley M. Cohen, Working Through the Patent Problem, 299 SCI. 1021, 1021 (Feb. 14, 2003). [5] Industrial Property Act, Article 25 and 90 (Official Gazette of the Republic of Macedonia No. 21, 17th February 2009). [6] See Julien Pénin and Jean-Pierre Wack, Research tool patents and free-libre biotechnology: A suggested unified framework, Research Policy, Volume 37, Issue 10, December 2008, Pages 1909-1921, Special Section Knowledge Dynamics out of Balance: Knowledge Bi-ased, Skewed and Unmatched, doi:10.1016/j.respol.2008.07.012., at: http://www.dime-eu.org/files/active/0/WP36_Penin-Wack_IP-ROSS.pdf. [7] It should be noted that de lege lata there is no truly uniform Euro-

pean approach to patent infringement as a matter of law. A patent issued under the European Patent Convention (EPC) is not a uniform European patent but merely a “bundle” of national patents issued in a unified granting procedure. The countries members of the EU are not the same countries signatories of the EPC. The number of EPC countries is higher. Republic of Macedonia is a signatory of the EPC and a member state of the European Patent Office (EPO), at http://www.epo.org/about-us/epo/member-states.html. For the purposes of this paper and to avoid any confusion the term European will refer to European Union countries only.[8] Biotechnology Industry Organization, Guide to Biotechnology, 2007, at http://bio.org/speeches/pubs/er/BiotechGuide.pdf; See Arti K. Rai, Intellectual Property Rights in Biotechnology: Addressing new Technology, at http://scholarship.law.duke.edu/cgi/viewcon-tent.cgi?article=1070&context=faculty_scholarship.[9] Biotechnology Industry Organization, Guide to Biotechnol-ogy, 2007, at http://bio.org/speeches/pubs/er/BiotechGuide.pdf, pages 18 – 23. [10] Cockburn, Iain M. Blurred Boundaries: Tensions Between Open Scientific Resources and Commercial Exploitation of Knowledge in Biomedical Research Boston University and NBER (April 30, 2005). For drug development companies (such as Genentech), research tools are necessary inputs for their research, and consequently they are interested in having access at the lowest possible cost; for the tool companies (such as Human Genome Sciences) research tools are their products and direct generators of income and profits, and thus the research tools patents are often their only assets. Both stakehold-ers perceive the role of the research tool patents differently. Both For this see Federal Trade Commission, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy ch. 3 at 20 (2003), at http://www.ftc.gov/os/2003/10/innovationrpt.pdf ; James H. Davis and Michele M. Wales, The Effect of Intellectual Property on the Biotechnology Industry, Perspectives on the Prop-erties of the Human Genome Project, Scott Kieff edition 2003, at http://law.wustl.edu/Faculty/Documents/Kieff/HGPIP/Book.htm.[11] Eisenberg, R. Property Rights and the Norms of Science in Bio-technology Research, Yale Law Journal, 1987, 97:177-223; Rai, A. Regulating Scientific Research: Intellectual Property Rights and the Norms of Science, Northwestern University Law Review, 1999, 77:94-129; Keeping Science Open: The Effects of Intellectual Prop-erty Policy on the Conduct of Science, London: The Royal Society, 200; Krimsky, S. Science in the Private Interest: Has the Lure of Profits Corrupted Biomedical Research, Lanham MD: Rowan and Littlefield, 2003. In the United States, this originally occurred as a result of the Bayh-Dole Act 1980 which allowed universities to patent inventions in order to promote technology transfer. Licensing revenues are now seen as an important source of income for universities in most OECD countries. For this see Dent C. et al. “Research use of patented knowl-edge: A review, OECD Directorate for Science, Technology and In-dustry Working Paper 2006/2; See Katherine J. Strandburg, What Does the Public Get? Experimental Use and the Patent Bargain, WIS. L. REV. 81 (2004).[12] Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 Science 698, 699 (1998).[13] Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 Harvard Law Review 621 (1998).[14] Walsh JP, Arora A, Cohen WM: Effects of research tool patents and licensing on biomedical innovation. In Patents in the Knowledge- based Economy Edited by: Cohen WN, Merrill S. Washington DC: National Academies Press; 2003:285-340; Cho MK, Illangasekare S, Weaver MA, Leonard DGB, Merz JF: Effects of patents and li-censes on the provision of clinical genetic testing services. Journal of Molecular Diagnostics 2003, Vol. 5, no.1 (2003): 3 – 8; Murray F, Stern S: Do formal intellectual property rights hinder the free flow of scientific knowledge? An empirical test of the anticommons hypothe-sis. NBER Working Paper Series Working Paper 11465 2005:1-51.

Mirjana Todorovska


[15] Report of the National Institute of Health (NIH) Working Group on Research Tools (June 1993), at http://www.nih.gov/news/re-searchtools/index.htm; NRC (National Research Council): Intellectual property rights and research tools in molecular biology. Washing-ton, DC: National Academy Press; 1997. [16] Julien Pénin and Jean-Pierre Wack, Research tool patents and free-libre biotechnology: A suggested unified framework, Research Policy, Volume 37, Issue 10, December 2008, Pages 1909-1921, Special Section Knowledge Dynamics out of Balance: Knowledge Bi-ased, Skewed and Unmatched, doi:10.1016/j.respol.2008.07.012., at: http://www.dime-eu.org/files/active/0/WP36_Penin-Wack_IP-ROSS.pdf, page 3; Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 Science 698, 699 (1998); Chester J. Shiu “Of Mice and Men: Why an Anticommons Has Not Emerged in the Biotechnology Realm, 413 Texas Intellectual Property Law Journal (Spring 2009).[17] Carl E. Pray and Anwar Naseem, Biotechnology R&D: Policy Options to Ensure Access and Benefits for the Poor, ESA Working Pa-per No. 03-08, June 2003, at ftp://ftp.fao.org/docrep/fao/007/ae041e/ae041e00.pdf. [18] Dreyfuss R., Protecting the public domain of science: Has the time for an experimental use defense arrived?, Arizona Law Review 2004, 46:457-472.[19] Myriad Genetics Inc., in collaboration with the University of Utah were the first to sequence the BRCA-1 gene, and applied for patent protection in 1994. Together with the University of Utah Re-search Foundation and the United States of America, Myriad holds U.S. patents 5747282 and 5710001 on the isolated DNA coding for a BRCA-1 polypeptide and on a screening method. In 1997, together with the Centre de Recherche du Chul in Canada and the Cancer Institute of Japan, they received patent protection on an isolated DNA sequence, asserting rights over a number of mutations in the gene (U.S. Patent 5693473). Further patent applications were filed on the second gene, BRCA-2, in the U.S. and in other coun-tries (US Patents 5837492 and 6033857), at http://www.wipo.int/wipo_magazine/en/2006/04/article_0003.html; It is worth noting that the European Patent Office (EPO) has severely limited the claims of BRCA1 and BRCA2 patents, see European Parliament, Resolution on the Patenting of BRCA1 and BRCA2, B5-0633/2001, October 2001, p. 9, at http://www.europarl.europa.eu/calendar/calendar?APP=PDF&TYPE=PV1&FILE=20011002EN.pdf&LANGUE=EN; Eu-ropean Parliament, agenda, Strasbourg, Thursday 4 October 2001, at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=//EP//TEXT+AGENDA+20011004+SIT+DOC+XML+V0//EN.[20] Association of Molecular Pathology, et Al. v. U.S. Patent and Trademark Office, et Al., No. 09 Civ. 4515., United States District Court, S.D. New York., November 2, 2009, at http://scholar.google.com/scholar_case?case=8655748871402363352&hl=en&as_sdt=2&as_vis=1&oi=scholarr.[21] John H. Barton, New Trends in Technology Transfer, Interna-tional Centre for Trade and Sustainable Development Intellectual Property and Sustainable Development Series, Issue Paper, No. 18 (2007); Ernst and Young, Beyond Borders, Global Biotechnol-ogy Report 2009, at http://www.ey.com/Publication/vwLUAssets/Beyond_borders_2009/$FILE/Beyond_borders_2009.pdf; Com-mission of the European Communities, Life Sciences and Biotechnol-ogy – A Strategy for Europe, Second Progress Report and Future Orientations, 2004.[22] Ernst and Young, Beyond Borders, Global Biotechnology Report 2009, at http://www.ey.com/Publication/vwLUAssets/Beyond_borders_2009/$FILE/Beyond_borders_2009.pdf[23] As a microeconomic indicator, the average salary in Macedonia is €430, one of the lowest in Europe, at: http://www.investinmace-donia.com/Default.aspx?item=menu&themeid=295&itemid=361. Also, according to the World Bank Development report, 22 % of the total population lives below the poverty line, at: devdata.world-bank.org/AAG/mkd_aag.pdf. As Marx said “empty stomach was

not conducive to freedom”, cited in David Harvey, A brief history of neoliberalism, page 184.[24] International Monetary Fund’s country classification in the World Economic Outlook, at http://www.imf.org/external/pubs/ft/weo/2009/02/weodata/groups.htm#ae; World Bank Country Classification, at http://web.worldbank.org/WBSITE/EXTERNAL/DATASTATISTICS/0,,contentMDK:20420458~menuPK:64133156~pagePK:64133150~piPK:64133175~theSitePK:239419,00.html[25] UNDP Human Development Report 2009, http://hdr.undp.org/en/media/HDR_2009_EN_Complete.pdf; Horst See W. Doelle, Biotechnology and Human Development in Developing Countries, EJB Electronic Journal of Biotechnology ISSN: 0717-3458, 2001 at http://www.ejbiotechnology.info/content/vol4/issue3/issues/02/; See Boru Douthwaite, Technology Exchange, EJB Electronic Journal of Biotechnology ISSN: 0717-3458, 2002, at http://www.ejbiotechnol-ogy.info/content/issues/02/index.html.[26] For example, refer to the share of countries in biotechnology patents filed at the EPO at 2002, where EU’s share was 34.5 % and US’ share was 39.9% of the total number of patents filed. See Tomas Jonsson, Competitiveness of the European biotechnology industry, European Commission, Enterprise and Industry DG, Unit F5: Competi-tiveness in the Pharmaceuticals Industry and Biotechnology, 2007, at http://ec.europa.eu/enterprise/phabiocom/docs/biotech_analysis_competitiveness.pdf; Ernst and Young, Beyond Borders, Global Bio-technology Report 2009, at http://www.ey.com/Publication/vwLU-Assets/Beyond_borders_2009/$FILE/Beyond_borders_2009.pdf. [27] Carl E. Pray and Anwar Naseem, Biotechnology R&D: Policy Options to Ensure Access and Benefits for the Poor, ESA Working Paper No. 03-08, June 2003, page 7, at ftp://ftp.fao.org/docrep/fao/007/ae041e/ae041e00.pdf. 14[28] Kyung-Nam Kang, Tae-Kyu Ryu and Yoon-Sik Lee, Effects of research tool patents on biotechnology innovation in a developing country: A case study of South Korea, BMC Biotechnology 2009, 9:25, at http://www.biomedcentral.com/1472-6750/9/25. The au-thors concluded that “Based on the study of the impacts of patents on innovation in the Korean Biotech SMEs and a comparison of these results with previous studies, we conclude that although restricted ac-cess problems have occurred, this has not yet deterred innovation in Korea. However, we can state that potential problems do exist, and the effects of restricted access should be constantly scrutinized.” See also John H. Barton, Research-tool patents: issues for health in the developing world, at: http://www.who.int/bulletin/archives/en/80(2)121.pdf. [29] Agreement on Trade Related Aspects of Intellectual Property administered by WTO, at http://www.wto.org/english/tratop_e/trips_e/t_agm3_e.htm. Macedonia is a WTO and TRIPS member since 2003, at: http://www.wto.org/english/news_e/news03_e/acc_macedonia_4apr03_e.htm. [30] Canada – Patent Protection of Pharmaceutical Products, Report of the Panel, WT/DS114/R, 17 March 2000, at http://www.wto.org/english/tratop_e/dispu_e/7428d.pdf.[31] Cornish, Experimental Use of Patented Inventions in European Community States, (29) IIC (7/1998): […] experimental activities are excepted from patent protection only when they are solely for the purpose of determining whether the patented invention is feasible, useful or technically operable, that is whether or not the invention works. Furthermore, experimental activities are considered permis-sible to the extent that they serve the purpose of technically perfect-ing and further developing the patented subject-matter.” [32] The Macedonian Industrial Act does not define what biological material is. My assumption is that the legislator has been using the EU Biotechnology Directive as a model for the “biotechnology provisions” in the Macedonian industrial property law. The EU Biotechnology Di-rective uses the term “biological material” to describe any material containing genetic information and capable of reproducing itself or being reproduced in a biological system, at: http://europa.eu/legislation_summaries/internal_market/single_market_for_goods/



pharmaceutical_and_cosmetic_products/l26026_en.htm. See also Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inven-tions, OJ L 213, 30.7.1998, p. 13–21, at http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=Directive&an_doc=1998&nu_doc=44.[33] Gans, J., The Dynamics Effects of Intellectual Property Practices, Melbourne Business School (2005).[34] Adam Smith, Wealth of Nations, at: http://www.bartleby.com/10/; Paul A. Samuelson and William D. Nordhaus, Economics, Fourteenth Edition, 1992.[35] Joseph Stiglitz, There is no invisible hand, The Guardian, Fri-day, 20 December 2002, at: http://www.guardian.co.uk/educa-tion/2002/dec/20/highereducation.uk1.[36] Reiko Aoki and Sadao Nagaoka, Economics of Research Ex-emption, Economics Working Papers (2006), The University of Auckland, at http://researchspace.auckland.ac.nz/bitstream/han-dle/2292/202/260.pdf;jsessionid=113185C8EDC2240DFE8681D12188955F?sequence=1.[37] Knight, Frank H, Risk, Uncertainty, and Profit, Hart, Schaffner & Marx; Houghton Mifflin Co. (1921), at http://www.econlib.org/library/Knight/knRUPCover.html. [38] Walsch JP, Arora A, Cohen WM: Effects of research tool patents and licensing on biomedical innovation. In Patents in the Knowledge- based Economy Edited by: Cohen WN, Merrill S. Washington DC: National Academies Press; 2003:285-340.[39] Chester J. Shiu “Of Mice and Men: Why an Anticommons Has Not Emerged in the Biotechnology Realm”, 413 Texas Intellectual Property Law Journal (Spring 2009).[40] Dent C. et al. “Research use of patented knowledge: A review”, OECD Directorate for Science, Technology and Industry Working Pa-per 2006/2, page 15.[41] The experimental use defense is a common law doctrine that ex-empts certain acts from patent infringement liability if they are con-ducted solely for the purpose of scientific inquiry (it is interchange-able referred to as “experimental use” and “research” exemption). It originated in Justice Story’s 1813 opinion in Whittemore v. Cutter 1 Gall. 429, 29 F.Cas. 1120 C.C.Mass. 1813, (“it could never have been the intention of the legislature to punish a man, who constructed [an infringing device] merely for philosophical experiments, or for the purpose of ascertaining the sufficiency of the machine to produce its described effects.”). [42] Roche Products, Inc. v. Bolar Pharmaceutical Co., Inc. 733 F.2d 858 C.A.Fed.,1984. See also Jian Xiao Carving Out a Biotechnology Research Tool Exception to the Safe Harbor Provision Of 35 U.S.C. § 271(E)(1), Texas Intellectual Property Law Journal (Fall 2003).[43] Madey v. Duke University 307 F.3d 1351 C.A.Fed. (N.C.),2002.[44] Drug Price Competition and Patent Term Restoration Act of 1984, Pub. L. No. 98-417, 98 Stat. 1585 (codified at 15 U.S.C. ss 68b-68c, 70b (1994); 21 U.S.C. §§ 301 note, 355, 360cc (1994); 28 U.S.C. § 2201 (1994); 35 U.S.C. §§ 156, 271, 282 (1994)).[45] 35 U.S.C. § 271(e)(1): “It shall not be an act of infringement to make, use, offer to sell, or sell within the United States or import into the United States a patented invention (other than a new animal drug or veterinary biological product . . .) solely for uses reasonably related to the development and submission of information under a Federal law which regulates the manufacture, use, or sale of drugs or veterinary biological products.”[46] Wolrad Prinz zu Waldeck und Pyrmont, Research Tool Patents After Integra v. Merck—Have They Reached a Safe Harbor?, 14 Mich. Telecomm. Tech. L. Rev. 367 (2008), at http://www.mttlr.org/volfourteen/waldeck.pdf.[47] Eli Lilly & Co. v. Medtronic, Inc., 496 U.S. 661 (1990).[48] Kevin Iles, A Comparative Analysis of the Impact of Experi-mental Use Exemptions in Patent Law on Incentives to Innovate, 4 Nw. J. Tech. & Intell. Prop. 61, at http://www.law.northwestern.edu/

journals/njtip/v4/n1/3. See, e.g., Scripps Clinic & Research Found. v. Genentech Inc., 666 F. Supp. 1379 (N.D. Cal. 1986), rev’d on other grounds, 927 F.2d 1565 (Fed. Cir. 1991); Intermedics, Inc. v. Ven-titrex, Inc., 775 F. Supp. 1269, 1272-73 (N.D. Cal. 1991).[49] See the dissenting opinion of Judge Newman in Integra v Merck where she recognized that it is very hard to draw a clear boundary line between exempted and non - exempted research categories. She disagreed with the Federal Circuit’s decision in Madey on research exemption. Focusing on the so-called “research tools,” which can be broadly defined to include any product or method used in the course of research, she made a distinction between “[u]se of an existing tool in one’s research” and “study of the tool itself.” The former category is intended for studying subject matters outside the technology of the tool (these should be exempted from patent infringement), whereas the latter may lead to improvements on that particular technology (these should not be exempted from patent infringement). However, this distinction is not cannot always be drawn easily in practice, be-cause the use of an existing tool in one’s research is often commingled with study of the tool itself; one could be improving the tool while using it to study something else. Also, patented inventions involved in both types of research entice innovation and there is no reason to give patent protection to the results stemming from both. See Integra Life-sciences I, Ltd. v. Merck KGaA 331 F.3d 860 C.A.Fed. (Cal.),2003.[50] National Research Council, A Patent System for the 21st Century 167 (Stephen A. Merrill, Richard C. Levin, & Mark B. Myers, Eds., National Academies Press 2004).[51] AIPLA Response to the National Academies Report entitled A Patent System for the 21st Century, page 25 – 26, at http://www.aipla.org/Template.cfm?template=/ContentManagement/Content-Display.cfm&ContentID=5544.[52] supra notes 2,5 and 19-27. Walsch JP, Arora A, Cohen WM: Ef-fects of research tool patents and licensing on biomedical innovation. In Patents in the Knowledge- based Economy Edited by: Cohen WN, Merrill S. Washington DC: National Academies Press; 2003:285-340.[53] Convention on the Grant of European Patents, Oct. 5, 1973, 1065 U.N.T.S. 199, 274, at http://documents.epo.org/projects/babylon/eponet.nsf/0/E4F8409B2A99862FC125736B00374CEC/$File/EPC_13th_edition.pdf.[54] Wolrad Prinz zu Waldeck und Pyrmont, Research Tool Patents After Integra v. Merck—Have They Reached a Safe Harbor?, 14 Mich. Telecomm. Tech. L. Rev. 367 (2008), at http://www.mttlr.org/volfourteen/waldeck.pdf.[55] Convention for the European Patent for the common market signed at Luxembourg on December 15, 1975 (commonly referred to as the Community Patent Convention (CPC 1975). Article 27(b) CPC 1989 contains identical provision.[56] Clinical Trials I and II (Klinische Versuche I, Federal Supreme Court, July 11 1995, RPC 1997, 623; Klinische Versuche II, Federal Supreme Court, April 17 1997, RPC 1998, 424), at http://www.managingip.com/Article.aspx?ArticleID=1321533. See also Wolrad Prinz zu Waldeck und Pyrmont, Research Tool Patents After Integra v. Merck—Have They Reached a Safe Harbor?, 14 Mich. Telecomm. Tech. L. Rev. 367 (2008), at http://www.mttlr.org/volfourteen/wal-deck.pdf. [57] Zeebroeck van N. et al. Patents and academic research: a state of the art Volume 9, Issue 2, Journal of Intellectual Capital (2008), 246 – 263.[58] Dent C. et al. Research use of patented knowledge: A review, OECD Directorate for Science, Technology and Industry Working Pa-per 2006/2, page 15.[59] Dimitar Eftimoski, Factors limiting human capital investment in Macedonia, Economic Institute, Skopje, Macedonia, at http://www.amfiteatrueconomic.ase.ro/arhiva/pdf/no20/articol_fulltext_pag50.pdf. See also Marjan Nikolov, Is the Workforce in Macedo-nia moving towards Human Capital Production, USAID Fiscal Reform Project, at http://www.cea.org.mk/Nikolov/Human%20capital%20production.pdf.

Mirjana Todorovska


[60] This provision would come as a replacement to the “free use” provision in the Industrial Property Act; I am not addressing regula-tory approval, so called “Bolar” exemption. This exemption is cov-ered by Article 74 (2) of the Macedonian Industrial Property Act (“Article 74 (1) A patent right is valid for a period of 20 years from the filing date of the patent application. (2) The validity of the patent right of sub (1) of this article can be extended over 20 years, but for a term not longer than five years, when the subject matter of the patent is a medical product, a product for plant protection, or a method for obtaining same products, which products prior to introduction into the market require an administrative approval procedure.”). [61] Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, OJ L 213, 30.7.1998, p. 13–21, at http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg

=en&type_doc=Directive&an_doc=1998&nu_doc=44.


Surviving the Storm: The Implications of Hurricane Katrina for the New Orleans Criminal Justice System and Public Defense

Brent Beckert

Introduction

In 1963, The United States Supreme Court ruled in Gideon v. Wainwright that defen-dants are entitled to legal representation, regardless of their income or ability to af-ford a lawyer. Judges ruled that “lawyers were not mere trappings for the rich, but an essential component of our justice system” [49]. The Louisiana State Con-stitution has followed these guidelines, declaring that the state legislature must provide assistance of counsel to indigent defendants. Scholars have agreed that a citizen’s “right to counsel is not satisfied by the mere presence of a warm body wearing a business suit and holding a copy of the criminal code. Rather the right to counsel is the right to effective assistance of counsel, free from any conflict of in-terest” [30]. Despite this clear mandate, criminal defendants in New Orleans have long been denied equal treatment under the law [43]. In the summer of 2009, I worked at the Orleans Public Defender’s office as an investigative intern. As part of my intern-ship, I conducted client interviews, took

statements from complainants and wit-nesses, photographed and mapped crime scenes, reviewed evidence, served subpoe-nas, and helped defense attorneys prepare for trial. The experience allowed me to see first-hand the importance and progress of indigent defense in New Orleans after Hurricane Katrina while illustrating the areas still in need of improvement [3]. I seek in this paper to fuse personal experi-ences with scholarly research in order to trace the evolution of the Orleans Public Defender’s office. The progress of the Pub-lic Defender in New Orleans directly cor-relates to increased public safety and the reduction of crime over time as citizens learn to trust the police department and become more comfortable with the crimi-nal justice process. Contrary to conventional wisdom, a strong public defense will actually im-prove community safety. In addition to keeping innocent people out of jail, it will build citizens’ faith in the courts, po-lice force, and District Attorney by hold-ing them accountable and keeping their power in check. Without indigent defense lawyers, the government can simply lock

J. Brent Beckert is a Political Science major and senior from Dallas, Texas. He has worked as an investigator for public defender offices inNew Orleans and Washington D.C., where he interviewed wit-nesses, canvassed crime scenes, and worked to provide a zealous defense for indigent clients fac-ing charges of murder, rape, and armed robbery. Living in New Orleans, he saw the detrimental effect of Hurricane Katrina on the city’s criminal justice system firsthand. He also is heav-ily involved in politics, having worked for the presidentialcampaign of Barack Obama and John Edwards. Brent wrote this article during the course of an independent study for Dean Sue Wasiolek

Brent Beckert


The Implications of Hurricane Katrina for the New Orleans Criminal Justice System and Public Defense

suspects up and forget about them, which is exactly what happened after Hurricane Katrina [9]. A com-petent defense structure also keeps the court system moving at a faster pace, reducing jail overcrowding and meeting the mandates implemented by the Con-stitution and subsequent S u p r e m e Court cases. When the levees broke in 2005, the court system came to an abrupt halt. P r i s o n e r s were lost in the system and detained for months without access to a lawyer. In a column for The New York Times, David Brooks wrote that the storm “washed away the surface of society, [and] expose[d] the underlying power structures, the injustices, the patterns of cor-ruption, and the unacknowledged inequalities” [6]. The justice system was corrupt long before Hurri-cane Katrina. Systemic problems, corruption, a lack of funding, and culture of drugs and violence made the city one of the most dangerous in the nation. The storm forced the parish’s indigent defense advocates to reexamine the organization and shift strategy to better represent destitute clients, who constitute over 90% of criminal defendants in the state [36].

A Culture of Violence and Corruption

New Orleans suffers from distinct problems that led to a notorious murder rate and high incarceration rate far before Hurricane Katrina. Compared to oth-er cities in America, the city’s residents are less edu-cated, underemployed, and surrounded by crime. In 2006, only 53.7% of high school seniors earned a di-ploma, compared to the 70% graduation rate nation-wide [45]. This had a direct impact on the job mar-ket, as the 2004 unemployment rate of 12% was over twice the national rate. African-Americans, who comprise 67% of the population, suffered dispropor-tionately, as rates of unemployment in the city were 20% higher than the national unemployment rate of African-Americans in that year [22]. With 28% of the population living below the poverty line and 22% unable to afford a car, scholars note that the typical family in New Orleans is weak, female-headed, and underclass, supplying generation after generation of “lightly parented” young men that fuel a cycle of vio-lence [20].

Despite having one of the nation’s highest incar-ceration rates and strictest sentencing guidelines, district attorneys and police officers have been un-able to keep streets safe [33]. Since 2001, the homi-cide rate per 100,000 residents has been at least 8

times the national average. The murders are over-whelmingly concentrated in low-income, racially segregated neighborhoods that offer little escape. According to one study, over 70% of murders are drug related [21]. The New Orleans Police Depart-ment commissioned a study in 2003 after the city witnessed 274 murders, or 59 homicides for every 100,000 residents. The ensuing investigation found that 92% of murder victims had criminal records, most with felony charges. One hundred and four vic-tims, nearly a third of the total slain, had been killed within three months of their last arrest. In addition, two-fifths of homicide victims tested positive for il-legal drugs during their autopsy [21]. New Orleans is not just struggling with murder. The city experiences twice the national average of robbery and 1.62 times the national average for aggravated assault [31]. The graph above illustrates the stark difference between homicides in New Orleans and on a national level. The crime rate has taken a toll on New Orleans citizens. Before Katrina, a poll of residents in the Central City neighborhood revealed that 55% of residents felt either “very unsafe” or “somewhat un-safe”. Only 6% of residents felt “very safe.” Citizen confidence plummeted after the chaos of Hurricane Katrina, as 69% of the population reported feeling unsafe [10]. Residents overwhelmingly cited drug dealers and usage, murders, and a scarcity of posi-tive activities for youth as their primary concerns in their neighborhood [10].

Structural Problems with the Criminal Justice System

nherent features of the courthouse, state legislature, police force, and district attorney’s office have cre-ated an inefficient, ineffective, and often corrupt

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process for criminal defendants. Without addressing these problems, the community cannot begin to re-cover and secure itself from a culture of murder and drugs. A strong indigent defense organization can help point out inadequacies in these departments, but it will take an internal, honest review of policies to adequately cure these problems. In Orleans Parish, criminal and magistrate judg-es are elected officials that face pressure from their constituents. They often feel a mandate to be tough on crime, not necessarily smart on crime. Criminal judges are not rewarded for being easy on defen-dants, so they must decide between electoral pres-sure and constitutional protections and notions of justice. Bond levels are set inordinately high because election pressure prevents magistrate judges from being neutral and detached. Tulane Law Professor Pamela Metzger claims judges “are in constant fear of seeing the headline: ‘Suspect strikes again Only Days After the Release by Judge X’” [30]. The New Orleans Police Department has strug-gled before and after Katrina to maintain control over the population. The force has a reputation of harboring corrupt and uneducated officers. Distrust towards the police is high among many residents, despite hiring an increasing number of African-American from New Orleans communities since the mid-1990’s that was intended to quell racial profil-ing and tensions [11]. For years, the department has been overwhelmed by the amount of violence. Be-fore Hurricane Katrina, there were 1,700 officers for 500,000 residents. Despite a high number of arrests, sloppy police work and poor cooperation with the District Attorney’s office meant that only 10% of ar-rests were ever prosecuted. Generally, crimes com-mitted against tourists were investigated aggres-sively because they impacted the city’s reputation and economy, while violent crimes in poor neigh-borhoods received less attention and investigation. Police and prosecutorial conduct was reported to be fiercer in minority neighborhoods, fostering a sense of inequality and hypocrisy [11]. Many of the inequalities in the criminal justice system could be addressed by the Louisiana State Legislature but are often ignored. The majority of legislators represent a vastly more conservative, ru-ral, and Caucasian constituency than New Orleans, reducing the incentive to repair an already costly indigent defense system. One legislator said that his constituents did not believe that indigent defen-dants had a right to a lawyer. They generally viewed attorneys as “a perk” for criminals that should not be guaranteed [47]. In fact, much of current New Orleans Public Defender Chief Derwyn Bunton’s job

description focuses on attaining funds for the eter-nally cash-strapped office. Facing a projected budget shortfall of millions, Bunton acknowledges that “no politician makes a career by strengthening public defense” [5]. Bunton’s assessment is correct, as the majority of politicians’ approaches to crime involve boosting funding for police and prosecutor offices, but make little mention of the concerns of the state’s indigent defense advocates [23]. The resulting effect is a sys-tem of mandatory minimums that give judges little discretion in fitting criminal defendants with a sen-tence that takes their individual case into account. Judges must give the death penalty for first degree murder, and mandatory life sentences for second degree murder, aggravated rape, aggravated kidnap-ping, regardless of the circumstances. They must also give a minimum of ten years for any armed rob-bery, with an additional five years for the use of a firearm [35]. In addition, under the Habitual Offend-er Act, a person convicted for a second felony must be sentenced to a minimum of 50% of the statutory maximum, and the maximum allowable sentence is doubled. A third offense involves additional sentenc-ing guidelines, and a fourth offense requires judges to sentence a defendant in the range of twenty years to life imprisonment. Under this law, someone can be convicted for life for non-violent crimes such as repeated drug possession [24]. Whereas most local jails are funded directly from the city budget annually, the Orleans Parish Prison operates like a private, for-profit jail and collects a per diem allocation per prisoner [40]. Sheriffs are paid $22.39 per night for each prisoner, creating a perverse incentive to delay court dates and keep cli-ents in jail in order to meet an annual budget shortfall [30]. The injustice of this funding structure became evident during my summer in New Orleans. James Bee [50] was arrested for murder in 2008. Accord-ing to prosecutors, Bee fired an automatic weapon at two drug dealers on the corner, killing one and seri-ously wounding the other. The District Attorney was unable to get witnesses to come forward, and, there-fore, could not find adequate physical evidence to tie our client to the crime. She subsequently lost the trial. Upon hearing a jury affirm his innocence, our client jumped up, hugged his attorney and family, and broke into tears. Moments after the jury hand-ed down its verdict of innocence, Bee was placed back into handcuffs and taken into prison, where he would spend the night. Despite winning his freedom in court, he was ordered to an extra night in prison, likely so that the Orleans Sheriff’s office could col-lect an extra $22.39 for keeping him [3]. These fac-

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tors create a huge prison population for the state to subsidize, as 1% of the Louisiana’s residents are cur-rently incarcerated. The state boasts the 10th larg-est prison population, despite having only the 24th highest population in the nation. In 2003, the state paid sheriffs almost $154 million to house approxi-mately 17,000 people in local jails [33]. Because state legislators, district attorneys, po-lice, and criminal justice advocates have been unable to punish criminals and prevent violence effectively and transparently, citizens have taken the law into their own hands. Many of the Orleans homicides are cyclical; one murder often takes place in revenge for a prior assault or homicide. Formal gangs have been slow to develop in the city, yet neighborhood alliances and violent rivalries are common [34]. Few examples illustrate the ineffectiveness of the crimi-nal justice better than Telly Hankton and his fam-ily. Telly’s cousin, George Hankton III was gunned down in 2007. Police arrested Darnell Stewart and Jesse Reed for the murder, but could not get suffi-cient evidence to bring either suspect to trial. Soon after their release, Telly Hankton allegedly ran over Darnell Stewart and shot him several times in the face. Hankton was arrested in 2008, and given a $1 million bond. Hankton bonded out of jail. A month

after, Jesse Reed was murdered with 59 bullets and evidence tying Telly Hankton to the scene [18]. Frus-trated with the weaknesses in the criminal justice system, citizens have taken revenge into their own hands, throwing caution and due process to the wind. While many may argue that criminal defense attor-neys directly enable the criminal culture in New Or-leans, the opposite is true. A resurgent and improved public defender office will enhance other aspects of the criminal justice system by keeping governmental powers in check. Effective indigent defense provides oversight to judges, prosecutors, and legislators, re-storing faith in the system and eliminating the ease with which government officials can use shortcuts in carrying out criminal justice [3].

Public Defense before Katrina: Ineffective and Unconstitutional

Long before the levees broke in August 2005, New Orleans was unable to guarantee indigent criminal defendants zealous and effective representation. The volatile funding situation led attorney Rick Tessier to sue Louisiana in State v. Peart in 1991. Tessier filed a motion that demanded the courts provide “Consti-tutionally Mandated Protection and Resources” for

Surviving the Storm

New Orleans Police watching the streets of New Orleans in the aftermath of Hurricane Katrina. [Source: Wikimedia Commons]


his clients [43]. Through the course of the lawsuit, the local courts held a series of hearings to exam-ine the defense services provided to Tessier’s client, Leonard Peart, along with other defendants in Sec-tion E of Criminal District Court. The court found that between January and August 1991, Rick Tes-sier represented 418 defendants. 130 of these clients entered guilty pleas before or during arraignment [43]. Pleading guilty before requiring prosecutors to prove guilt beyond a reasonable doubt or even prob-able cause for the client’s initial arrest illustrates the pressure that Tessier and other public defend-ers were under to clear their docket, despite the best interests of their clients. The court also found that Tessier had at least one trial date for every day dur-ing that time period and rarely received investigative support. In addition, the office received no funds for a law library, expert witnesses, or technology to aide in case tracking. The Louisiana Supreme Court ruled in favor of Tessier and the plaintiff, declaring that the state legislature created an inherently “unstable and unpredictable approach” to indigent defense funding [43]. The judges further ruled that the structure of public defense was “so lacking that defendants who must depend on it are not likely to be receiving the reasonably effective assistance of counsel that the constitution guarantees” [43]. Despite this clear rul-ing, the legislature drafted few meaningful reforms to indigent defense in the state. The combination of a high workload, long hours, and low pay made it difficult for public defenders to provide a zealous defense for their clients. In 2004, the Orleans Public Defender office had 42 lawyers, six investigators, and six administrative staffers. The office was responsible for over 7,000 cases annually. The caseload in the office was 4 to 5 times larger than the national public defender professional stan-dard, as each attorney represented approximately 233 new clients per year [47]. Starting Orleans pub-lic defenders made only $29,000 per year, compared to a starting salary of $30,000 for district attorneys in the parish. According to a survey of 102 indigent clients, the average defendant never spoke to his at-torney outside of the courtroom. The majority of poor defendants waited 60 days in jail before ever seeing a lawyer and were detained for 385 days pre-trial [49]. The inordinately slow process made it dif-ficult for attorneys and investigators to visit crime scenes, investigate alibis, review evidence, or estab-lish a trustworthy relationship with their clients. The problem begins in the state legislature, where politicians have been reluctant and unable to pro-vide indigent defense offices with consistent and ad-equate funding. After Gideon v. Wainwright made

publicly- provided counsel a federal constitutional right, Louisiana created a network of local indigent defender boards to administer the right of counsel in state courts for misdemeanor and felony cases [13]. These boards were appointed by local judges in each judicial district and were given the power to man-age their assignments. The legislature guaranteed the board $10,000 annually [30]. To raise additional funds, politicians enacted a $35 court fee in 1994 for defendants who are convicted, plead guilty or no contest, or forfeit bond [24]. Though exact funding has been inconsistent, this system translated to ap-proximately $2.2 million in annual funding for the Orleans Public Defender before Hurricane Katrina. Prior to Katrina, approximately 75% of the indigent defense budget was financed through traffic fines [30]. This system of indigent defense created an in-credible conflict of interest. The public defense bud-get is funded by convictions, not total representa-tion. If a public defender fights aggressively against a judge’s imposition and collection of fines, he or she forsakes funds necessary to represent other clients. Individual clients, however, are entitled to challenge these fees and deserve zealous legal counsel to help them in this endeavor. Professor Metzger stated that in this funding scheme, “A public defender with a perfect “no losses” record can rapidly become a pub-lic defender with a perfect “no paycheck” record” [30]. This conflict was not limited to New Orleans, but was a problem across Louisiana. In one parish, a public defender’s office sued to force local judges to increase fees imposed upon convicted clients, and to more aggressively collect the assessments in order to fund the under-resourced public defender office. Besides the obvious conflict of interest inher-ent in a case wherein an indigent defense attorney is fighting to increase financial hardship on his or her clients, the tension does little to promote the good relationship between public defenders and their cli-ents [30]. One of the unfortunate consequences of these budget shortfalls is that the Orleans Public Defender could not afford to represent a client until they were formally charged and arraigned. The Sixth Amend-ment of the United States Constitution guarantees criminal defendants the right to a “speedy and pub-lic trial,” but Louisiana has a less-than-swift pace of criminal justice. Defendants in Orleans Parish can be imprisoned for 60 days before being formally charged, and can remain in jail for an additional 30 days before being arraigned. While police and pros-ecutors conduct investigations immediately after an alleged crime, public defenders are seldom assigned a

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case until after the arraignment. Clients often spend 90 days in jail without having access to a lawyer [30]. The slow pace of the courts is detrimental to the defendant and the community, as clients often lose their jobs, are unable to pay rent, and cannot sup-port their family. Without access to a lawyer imme-diately after arrest, there is no one to find exculpato-ry evidence and release innocent defendants before arraignment. After three months, cases are much harder to investigate and defend. Witnesses have a finite memory, and often forget key details after a few months, if not weeks. Physical evidence such as blood splatters, fingerprints, or DNA samples can be washed away or cleaned before defense investigators approach the scene [30]. Perhaps most alarming is that prosecutors have an incentive to delay formally charging a client. By delaying the process and keep-ing a client unrepresented, law enforcement and prosecutors are free to interrogate defendants and convince them to plead guilty or cooperate in other investigations [33]. Apart from budgetary concerns, the Orleans Public Defender faced several other obstacles before Hurricane Katrina that made it difficult to provide a zealous defense for its clients. Public defenders were assigned to specific courtrooms, not individual cli-ents. If a client was transferred to a new courtroom, a new lawyer was assigned to him or her, even if the case was in trial. The office wanted to foster good re-lationships with judges, who wanted attorneys that were used to their style of judging. The policy cre-ated a staff of court-centered public defenders who often worked more to appease the judge than fight for their clients [33]. Under the system, attorneys did not even maintain case files on clients who had been formally charged. Instead, most lawyers ap-peared at their assigned section of court each day and handled the cases listed on their docket, with little investigation, preparation, or knowledge about the individual case. In addition, the public defenders in Orleans Parish worked part-time, allowing them to simultaneously represent paying clients from their private practice as well. This created another conflict of interest by creating an incentive for law-yers to do a minimum amount of work for indigent defendants in order to maximize their income from paying clients. In addition, lawyers would often ab-stain from objecting and arguing vehemently for in-digent clients, out of fear that they would damage their relationship with the judge and hurt their pri-vate clients. The criminal justice and indigent defense system in New Orleans was chaotic, inefficient, and uncon-stitutional long before Hurricane Katrina. A volatile

funding structure forced indigent defense attorneys to represent several hundred clients each year, with-out giving them access to investigative support or expert witnesses. In addition, there were consider-able problems inherent in the legal culture itself. An office policy assigning attorneys to specific court-rooms, as opposed to a list of clients, created an im-personal, ineffective league of court-centered attor-neys. By allowing the lawyers to work part-time, the office often neglected to provide a zealous indigent defense in the interest of protecting the interests of an attorney’s paying clients. Despite outcries from the legal community, criminal defendants, and the Louisiana Supreme Court, few meaningful reforms occurred until Hurricane Katrina broke the levies and swept the city underwater [30].

Hurricane Katrina: An Impetus for Reform

On August 29, 2005, Hurricane Katrina hit New Orleans, cutting off power, communications, and inflicting serious wind damage on the city. City of-ficials declared the following morning that the worst part of the hurricane largely spared New Orleans, and that the damage was not as devastating as pre-viously forecasted. Within a few hours though, sev-eral canal levees broke and flooded 80% of the city. The violent waters engulfed homes, forced families onto their roofs, and killed over 1,600 citizens in the region [20]. Poor, predominately African-American communities like the Ninth Ward were destroyed. Over 30,000 citizens who did not evacuate took ref-uge in the Louisiana Superdome, braving heath di-sasters and food shortages to wait for help. As the plight of New Orleans’ citizens captivated the country, the experiences of prisoners and the criminal justice system largely escaped media atten-tion. For several months, judges, prosecutors, and police were scattered, unprepared, and unfunded. Prosecutions came to a halt, as witnesses were scat-tered across the country. The evidence room in the basement of the courthouse completely flooded. Guns, ammunition, and other pieces of physi-cal evidence were separated from identifying tags. Seized cash, letters, fingerprints, and other pieces of evidence were completely ruined and unusable. The District Attorney’s office lost most of its fund-ing after the tax base collapse. The office laid off its investigators and could not even pay its phone bill. Twenty of the office’s 90 attorneys quit, many cit-ing an unwillingness to return to New Orleans [19]. The prosecutors that remained in New Orleans had to work from home or at three reserved tables in a downtown hotel. From December 2005 until May

Surviving the Storm


2006, the office worked out of a former nightclub under disco balls. The court system had no backup of files, as many police reports, records, dockets, and testimonies were lost in the flood [20]. Even when then-District Attorney Eddie Jordan could match a prisoner to a crime, corral witnesses, and find suffi-cient evidence to try defendants, he ran into another problem: no juries. After the city lost nearly 80% of its residents, it became impossible to find a suitable jury pool, or even issue summons to residents living in temporary housing. The New Orleans Police Department (NOPD) was caught unprepared by the storm, leading to an escala-tion of community-police tensions. The department was given no training for floods and had no boats or adequate flood supplies. Governor Kathleen Blanco and President George W. Bush sent National Guard troops on September 2, 2005 to help maintain order, even though they had no law enforcement training. The Posse Comitatus Act, designed to separate mili-tary from civil law enforcement, prevented guards from arresting subjects or even carrying loaded guns [47]. Without a working jail, police officers stopped making arrests all together. They simply released suspects after apprehending them. Stories of ten-sions between police and citizens reached national

audiences after photographers caught NOPD offi-cers carrying TVs and electronics through the flood-waters from the Wal-Mart on Tchopitoulas Avenue [1]. The friction escalated on September 4th, when seven police officers responded to a police dispatch reporting an officer down on the Danziger Bridge. According to official reports, at least four people fired weapons at responding officers, who then re-turned fire. Two people, including a mentally-retard-ed man shot in the back, were killed and four other civilians were severely wounded. Seven indictments were filed against the officers, but were dismissed in August 2008 due to prosecutorial misconduct [7]. Without a formal evacuation plan in place, Sheriff Marlin Gusman and his staff were responsible for the safety and security of an estimated 8000 inmates in-side the Orleans Parish Prison, the nation’s 7th larg-est penal institution [20]. Many of the incarcerated were initially arrested for petty, non-violent crimes [20]. Instead of moving prisoners to other jails in the state, Sheriff Gusman decided at the last minute to enact a “vertical evacuation,” and simply move pris-oners and staff to higher floors of the prison. When the levees broke, water flooded the emergency gen-erators and bottom floors of the prison, cutting off lights and air circulation and stopping the flow of

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New Orleans Police marks off restricted areas. [Source: Wikimedia Commons]


sewage. Many guards had their families with them and were much more worried about their safety than that of the prisoners. Prisoners who were arrested for traffic tickets were placed in cells with men serving for manslaughter. According to one defense lawyer present in the aftermath, “[the prisoners] were afraid of each other; they were afraid of dying; they were afraid no one would ever come back for them” [26]. Many prisoners locked in electronic cells remained there for days, as the doors could not open. Men locked inside the day rooms had no access to toilet facilities. Few prisoners had access to food, water, or air for the first half of the week [26]. Three days after the levees broke, the Louisiana Department of Cor-rections arrived with boats to carry prisoners to the Broad Street bridge, where they were packed into bus-es and sent to other jails around the state [20]. Many prisoners were brought to the Elayn Hunt Correc-tional Facility in Gabriel, Louisiana, where they were locked inside the prison football field. Once again, prisoners were grouped together, regardless of their sex or incarcerating offense. Men and women facing misdemeanors were face to face with accused mur-derers. Guards, fearing for their safety, threw peanut butter and jelly sandwiches over the fence once a day. Prisoners had no bathrooms, hot food, cold water, or any place to sleep [20]. Judges from New Orleans traveled to Hunt Correctional to establish makeshift court hearings but were unsuccessful in locating in-dividual inmates, evacuated lawyers, and scattered witnesses [20]. From Hunt, thousands of prisoners were then transferred to different prisons across the state, including the Angola State Penitentiary. Many were subsequently lost in the system, with reports estimating that up to 4,000 prisoners served more than sixth months without access to a lawyer or to constitutionally required judicial proceedings [37]. The public defense office and the city’s criminal defense structure collapsed as funding dissolved and lawyers evacuated the city. Without the revenue gen-erated by traffic tickets and convictions, the office could not afford to pay its already-small staff. Within weeks, the office had only six lawyers and one inves-tigator, down from 42 lawyers and 6 investigators prior to the storm [47]. The office kept no case man-agement system, no client files, and had a backlog of 6,000 cases with defendants that were scattered in jails across the state [47]. Phyllis Mann, former president of the Louisiana Association of Criminal Defense Lawyers sent letters to lawyers across the state, asking them to call their local sheriffs and get a list of inmates. Often, sheriffs could not provide proper records, as many prisoners were dumped in their jails with no documentation. Deputies had no

medical records for their prisoners, so chronically ill and psychiatric patients went without medicine as the justice system attempted to organize itself. Without a strong indigent defense system, the criminal justice process came to a grinding, uncon-stitutional halt. No prisoners were given the chance to make bond until October, over two months after the storm [20]. Even if a prisoner were released from a jail in the state, problems remained. State and lo-cal jailers were hesitant to release prisoners into sur-rounding communities, so many waited for Sheriff Gusman to send biweekly buses to pick them up. This defied the judge’s orders, as defendants often had to wait several days after their release [20]. The first criminal bench trial after the storm was not un-til March 26, 2006, while the first jury trial was not until a month after that. For the next four months, there were only 15 jury trials despite 3000 pending cases [20]. In the aftermath of Hurricane Katrina, the city was desperate to increase its tax base and repair its image. Eager to reduce the crime rate, police and prosecutors increased pressure on the poorest neighborhoods in New Orleans that fostered “crazed drug addicts” and “violent gang members” according to Mayor Ray Nagin [21]. This pressure correlated with a decreased prosecution of crimes by visit-ing tourists who brought money into the city. The collapse of the public defender’s funding came at a tragic time, as increased attention on the city’s poor often meant sidestepping constitutional protections and procedures.

Rebuilding After the Storm

Hurricane Katrina completely stripped the Orleans Public Defender of its funding, employees, and sup-port network. Facing a growing case backlog despite little financial support, the organization undertook a series of reforms. In April 2006, local judges ap-pointed a new board that included Tulane professor Pamela Metzger and Loyola professor Dane Ciolino. The board hired Ronald Sullivan from Yale Law as a consultant, and Loyola professor Steve Singer to be the Chief of Trials [47]. Sullivan, the former director of the Public Defender Service in Washington D.C., commented that even eight months after Katrina, drastic change was needed:

“Poor citizens accused of a crime are not re-ceiving anything close to constitutionally adequate representation. Even more, Hurricane Katrina is not the cause of the criminal justice system’s problems; Katrina merely exposed long-

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standing problems in the delivery of represen-tation to poor citizens. While I am advising the relevant political actors on reform, such reform is met with resistance from all quarters -- even from so-called people [with] good will.” [44]

Immediately after joining, Sullivan enacted sever-al reforms. He required attorneys to work full-time, barring them from taking cases from private clients. Starting salaries of public defenders were raised to $40,000 as Sullivan lobbied furiously for additional funds. The office also transitioned to a client-focused practice, as it began to assign lawyers to clients, not specific courtrooms. These shifts met heavy initial resistances from the office, as six public defenders resigned in protest. Judges also disliked the changes, saying that their dockets moved slower and public defenders were not always familiar with their court-room procedures and idiosyncrasies [47]. When Singer and Sullivan began work, the office had four computers and two telephones. The lack of funding became so bad that judges threatened to re-lease criminal defendants unless the state increased funding to indigent defense programs. In February 2006, the Department of Justice commissioned a study on the Orleans Public Defender office, estimat-ing a necessary annual budget of $8.2 million, with $10.7 in initial startup costs [28]. Before Hurricane Katrina, the office operated on about $2.5 million per year [29]. Six months after the hurricane, the state re-sponded by allocating some additional money to the office, amounting to what Justice Hunter described as a temporary “band-aid” that would not solve the problem [20]. The Department of Justice stepped in to give the office $2.8 million in grants out of a $58 million state-wide initiative, but long-term funding problems remained [20]. In June 2006, Judge Hunter issued a subpoena for Governor Blanco to appear in court and discuss funding for indigent defense in the state budget [16]. The governor declined to at-tend the hearings, reasoning that the legislature was directly in charge of criminal defense funding and that she should not be held responsible. In response, Judge Hunter blasted the state government’s incom-petence, and continued his threat of releasing pris-oners who have not been given adequate legal coun-sel. He declared a state of emergency, reasoning, “After 11 months of waiting, 11 months of meetings, 11 months of idle talk, 11 months without a sensible recovery plan and 11 months of tolerating those who have the authority to solve, correct and fix the problem but either refuse, fail or are just inept, then necessary action must be taken to protect the con-stitutional rights of people” [17]. By November, the

majority of judges in criminal district court ordered the public defender office to hire more attorneys or face contempt charges. But without funds, the judges and attorneys were unable to fix the situation until further legislative intervention [28]. In January 2007, Chief Juvenile Court Judge David Bell threw Singer in jail for contempt of court because the office was not prepared to defend a case, presumably on account of a lack of resources [28]. When it became clear that the state would continue to give a deaf ear to indigent defense, Judge Hunter decided to release 42 defendants from jail that had received inadequate representation and halt their prosecutions until the state would provide additional financing [41]. In an angry order from the bench, the judge declared, “In-digent defense in New Orleans is unbelievable, un-constitutional, totally lacking in basic professional standards of legal representation and a mockery of what a criminal justice system should be in a West-ern, civilized nation” [41]. The pressure had an impact, as the Louisiana state legislature passed several reforms during the summer of 2007 in what became the Louisiana Pub-lic Defender Act [24]. The act dissolved the system of local indigent defender boards and created the Louisiana Public Defender Board (LPDB), an in-dependent agency in the state’s executive branch, to oversee the state’s public defender obligations [36]. It also provided a statewide funding system for public defenders with an additional $7 million ap-propriation, or $28 million for the state in 2008 [47]. As an independent agency, the new board was given the authority to impose standards and intervene if local offices became dysfunctional [47]. Perhaps the most important aspect of the law is the appointment process for selecting members of the board. In the original system, local board members were appoint-ed by district judges, causing potential conflicts of interest. The new LPDB board, however, bars active judges, prosecutors, law enforcement personnel, and public defenders from being members and requires that four of the appointees are from one of the state’s four law schools [25]. Under the direction of Sullivan, Singer, and then-chief public defender Christine Lehmann, the office made considerable improvements. The staff soon had an office to meet clients, with each attorney giv-en a desk, telephone, and laptop. The office also be-gan using a case management system donated by the District of Columbia Public Defender Service (PDS) to track cases [42]. As Singer quipped, “These seem-ingly ordinary aspects of any modern, functioning law office are nothing short of revolutionary for the New Orleans public defenders” [42]. By September

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2007, the office had 45 full-time lawyers, nine in-vestigators, and six administrative staffers [47]. To help with the backlog of pre-Katrina cases, the office created partnerships with indigent defense offices in Minnesota, Philadelphia, and Washington, D.C. Each office has sent several attorneys for six-month sabbaticals. An emergency pro hac vice rule passed by the state allows them to practice in Louisiana, provided that they are accompanied by lawyers from the state [47]. The office also revamped its investigations depart-ment, leaning heavily on practices obtained from Sullivan’s time at the DC Public Defender Service. Investigators are assigned to a team of lawyers and given anywhere from 28 to 60 active cases [12]. For each case, attorneys create an investi-gative request that gives witnesses to be contacted, crime scenes to be photo-graphed, and alibis to be confirmed [3]. Investigators are also given access to Accurint and Ax-ciom, databases that track consumer data and public records, to locate hard-to-find witnesses. In 2007, Steve Singer, Training Direc-tor Jonathan Rap-ping, and William McKenna, Chief of Investigations, all alumni of PDS, cre-ated the Investiga-tive Intern program. The program allowed undergraduate and graduate school students to investigate cases to help attorneys and investigators with their growing case load. Dur-ing my tenure as an investigative intern, for example, I worked on over 23 cases, with charges ranging from drug possession to murder and rape [3]. The program has also been successful in attracting can-didates for full-time employment, as five former in-terns currently work for the organization as full time investigators [3]. The rebuilt investigations department has been instrumental in helping the office provide a zeal-ous defense for its clients. In one instance, a client was arrested for armed robbery and incarcerated for

three months. Staff Investigator Kim Denison spoke to the two complaining witnesses, who recounted their experiences about the incident and subsequent police investigation. During the course of the inter-view, the witnesses admitted that the police were in-credibly suggestive during the suspect identification process. The witnesses were told who to choose out of a photo lineup, despite their reservations. Deni-son built a rapport with the complaining witnesses and convinced them to testify at a motions hearing about the police misconduct. Judge Julian Parker told the court that it was the most suggestive identi-fication procedure that he had heard of in 20 years in the courthouse, forcing the District Attorney to drop the case and release the defendant [12].

In light of numerous reforms to the office, prob-lems remain. The city added traffic cameras in April 2008, promising the public defender office five dol-lars from each citation. A year and a half later, OPD is still waiting for the city to provide the money. In addition, city council opted to leave the office out of budget in 2010 after giving the office a $500,000 ap-propriation in 2009 [38]. Chief Public Defender Der-wyn Bunton decried the move and has threatened to stop accepting murder and rape cases until they are given the funding to properly represent their clients. Even District Attorney Leon Cannizzaro warned, “If the public defender opts not to take cases that would have a devastating impact on the criminal justice

Surviving the Storm

Former Louisiana Governor Kathleen Blanco attends Louisiana Planning Day, a joint initiative to rebuild Louisiana after Hurricane Katrine. [Source: Wikimedia Commons]


system. I’ve always advocated we have to sit down, and it’s important to us that not just we be funded, [but] that other actors within the criminal justice system be funded” [38]. Orleans City Council mem-bers believe the state should be fully responsible for the funding of indigent defense and have even of-fered to accompany public defenders to the capital to plead their case [38]. The Orleans Public Defender’s reforms have also met considerable resistance from local judges and prosecutors recently. In the past two years, at least seven OPD staff have been arrested or detained for contempt of court. In one case, a judge held recent-ly-hired investigator Emily Beasley of contempt of court and simple kidnapping for taking a 12-year-old alleged rape victim and her 8-year-old sister across the street for an interview without their mother’s consent [15]. In his remarks, the prosecutor scolded investigators and attorneys for their aggressive prac-tices: “This matter is not new today. Every judge in this building has confronted this issue. [There] are people dying out there because of irresponsible ac-tivities by defense attorneys. There are people every day refusing to testify” [15]. Steve Singer, who acted as counsel for Beasley, said that no laws were broken and that prosecutors were only prosecuting the case to scare investigators and attorneys from complet-ing vigorous, zealous representation. Singer argued, “This courthouse has the highest reversal rate in the country. They (prosecutors) do not want vigorous defense investigation. That is the only way to explain this malicious prosecution, which has no basis at all” [15]. Despite only a one-day sentence, the public de-fense office took the ruling as a sign that prosecutors and judges were trying to stop the rapidly shifting agency’s recent successes in the courtroom [3].

Importance of a Zealous Public Defense

Hurricane Katrina shook the New Orleans criminal justice system to its core, exposing an underlying culture of corruption, neglect, and incompetence. In the years prior to the storm, public defense was court-centered, underfunded, and unconstitutional. During the course of its rebuilding, the Orleans Pub-lic Defender office has defended and freed hundreds of innocent people. But perhaps equally as impor-tant, it has illustrated the vital economic, social, and security benefits that a strong indigent defense sys-tem can bring to a city. An effective office saves the city money by reduc-ing wrongful-conviction lawsuits. Without a zealous adversary to challenge them, prosecutors are able to take shortcuts in preparing a case. These cases can

be overturned on appeal, and the subsequent law-suits cost the city millions. In August 2009, the U.S. 5th Circuit Court upheld a trial court’s $14 million verdict against the Orleans Parish District Attor-ney’s Office for withholding evidence in a 1985 cap-ital murder trial [14]. In addition, effective defense boosts the economy by keeping innocent people in the workforce, so that they can pay taxes and con-tribute to the local economy. With the combination of medical bills, food and labor costs, the average inmate costs Louisiana taxpayers almost $12,000 per year, not including court costs [46]. This is an expensive price to pay for those who are wrongfully convicted or unreasonably sentenced on account of bad lawyering. In addition, strong indigent defense can make a city safer by increasing confidence in the justice system, thus enhancing cooperation. Former Dis-trict Attorney Eddie Jordan said that incompetent police officers and a general mistrust of officers by witnesses and jurors are detrimental to many cases. By exposing misconduct in a public courtroom, the public defender can put pressure on the Po-lice Chief to terminate corrupt officers. If citizens know that police and prosecutors can be held ac-countable for their actions, over time they should be more likely to testify, give tips, cooperate with investigations, and accept the verdicts of a case. Otherwise, the formal criminal justice system can give way to a culture of “street justice”. As Loyola University criminologist Dee Harper argues, when people don’t agree with or “trust the conventional justice system, they come up with their own form of social controls” [48]. In July 2008, Tyrone Reynolds was charged with second-degree murder. After a witness gave inconsistent testimony, Reynolds was acquitted for the murder in 2009, only to be slain 11 days later. Reverend John C. Raphael, a former po-lice officer himself, lamented the state of retaliatory murder: “Last week I buried one on Tuesday, and the one who killed him was buried on Wednesday. And I buried another one on Friday. And the one I buried Friday, somebody shot part of the family later that night” [34]. It is not reasonable to expect a police chief to personally monitor and appropri-ately punish every corrupt and incompetent police officer. Indigent defense attorneys in New Orleans are able to keep police honest by raising concerns to the media and criminal justice commissions, who can uniquely pressure police administrators to up-hold professional standards. While public defenders’ primary mission is to maximize the liberty interests of their clients, in-digent defense lawyers are in a unique position

Brent Beckert


to help clients better their lives, even if their work reaches further than the case at hand. When a client is arrested, he often loses his job, abandons a family, and is thrust into a legal world with which he rarely has any understanding. In conversations with the de-fendant, attorneys can give important information and even offer counseling. They can discuss how a client can manage relationships with his family and who may depend on him for rent, food, and cloth-ing. Attorneys can also advise how to avoid future charges and how to take advantages of alternative dispositions like drug treatment programs that can beneficially impact the client’s life [32]. Since Hur-ricane Katrina, the office has employed several social workers that help clients stabilize their lives, improve relationships, and expunge prior convictions that may hinder employment opportunities. Part of the whole-client representation model that the Orleans Public Defender office embodies involves working with prosecutors, judges, and politicians to reduce crime overall by advocating sentencing alternatives that are more effective. Eric Malveau, a former prose-cutor and public defender in New Orleans explained, “You can put a cop on every corner, and you will not stop the murders. As long as you have a large popula-tion that is uneducated and has no job and no hope, what else is there to do but sell drugs? Until you fix that, it’s hard to see the problems getting much bet-ter” [34]. While politicians and district attorneys are under a perceived political pressure to advocate a “tough on crime approach” that focuses primar-ily on deterrence and incapacitation through long sentences, indigent defense attorneys can advocate holistic approaches to reduce the culture of crime. In the aftermath of the previously-discussed murder case of James Bee, it was clear that significant action needed to be taken to prevent retaliation or a return to jail. After the jury’s acquittal, the attorneys in the case helped Bee find a job and advised him to stay away from the neighborhood [3]. While not techni-cally part of an indigent defender’s job description, an emphasis on whole-client representation helps reduce recidivism and improves city safety. Indigent defense is a difficult, politically unpopu-lar career. But, as the case of New Orleans illustrates, effective public defenders are vital to the operations of the criminal justice system. A competent public defense office can free the wrongfully accused, save taxpayer dollars, expose public corruption, advocate for smarter adjudication, and restore faith in police and prosecutors. For an office to be successful, legis-lators and chief public defenders must prioritize ad-equate funding, client-centered representation, and a holistic approach to crime that helps prevent future

Surviving the Storm

judicial entanglements. Despite a horrific past of incompetence and inadequacies, the Orleans Pub-lic Defender has become a model for other indigent defense offices to study and emulate.

[50] Name has been changed to protect attorney-client privilege Works Cited[1] Associated Press. “Misconduct reports plague New Orleans cops - Katrina, The Long Road Back- msnbc.com.” MSNBC. http://www.msnbc.msn.com/id/9754730/ (accessed December 03, 2009). [2] Associated Press. “New Orleans Murder Rate Gets Even Worse.” January 1, 2008. [3] Beckert, Brent. “Personal Observation.” 2009. [4] Boland, Mary L. “Will Your Criminal Justice System Function in the Next Disaster.” Criminal Justice (Spring 2007): 28-34. [5] Bracy, Val, writer. “Public defender’s office worries about budget cuts.” In News. Fox 8 WVUE. October 10, 2009. [6] Brooks, David. “The Storm after the Storm.” New York Times, September 1, 2005. [7] Burnett, John. “What Happened on New Orleans’ Danziger Bridge?” NPR, September 13, 2006. http://www.npr.org/tem-plates/story/story.php?storyId=6063982 (accessed December 2, 2009). [8] Cass, Ronald A. “The Rule of Law in Time of Crisis.” Howard Law Journal 58, no. 3 (2008): 653-76. [9] Chiarkis, Nicholas L., D. Alan Henry, and Randolph N. Stone. An Assessment of the Immediate and Longer-Term Needs of the New Orleans Public Defender System. Report. Washington: BJA National Training and Technical Assistance Initiative Project, 2006.

[10] Crime & Safety in Central City: A Community’s Perspective. Re-port. New Orleans: Metropolitan Crime Commission, Inc., 2007. [11] Deflem, Mathieu, and Suzanne Sutphin. “Policing Katrina: Man-aging Law Enforcement in New Orleans.” Policing 3, no. 1 (February 3, 2009): 41-49. [12] Denison, Kim. “OPD Paper.” E-mail message to author. Decem-ber 13, 2009. [13] Drew, Richard. “Louisiana’s New Public Defender System: Ori-gins, Main Features, and Prospects for Success.” Louisiana Law Re-view 69 (July 2009): 955-87. [14] Filosa, Gwen. “A divided appeals court affirms jury’s $14 mil-lion award to a former death-row inmate.” The Times-Picayune (New Orleans), August 10, 2009, Crime sec. [15] Filosa, Gwen. “Investigator for N.O. public defenders jailed on kidnapping charge.” The Times-Picayune (New Orleans), July 16, 2009, Crime sec. [16] Filosa, Gwen. “Judge Orders Blanco to Come to Court.” The Times-Picayune (New Orleans), July 1, 2006, Crime sec. [17] Filosa, Gwen. “Judge Vows to Free Untried Inmates; State of Emergency Exists, Hunter Says.” The Times-Picayune (New Orleans),


July 26, 2006. [18] Filosa, Gwen. “Telly Hankton, described as one of New Orleans’ most dangerous criminals, turns himself in to police.” The Times-Pica-yune (New Orleans), June 22, 2009. [19] Friel, Brian. “Post-Katrina - Louisiana’s Justice System in Tatters.” National Journal Group (December 3, 2005). [20] Garrett, Brandon L., and Tania Tetlow. “Criminal Justice Col-lapse: The Constitution after Hurricane Katrina.” Duke Law Journal 56 (2006): 127-78. [21] Gelinas, Nicole. “Who’s Killing New Orleans?” City Journal (Au-tumn 2005). [22] Holzer, Harry J., and Robert I. Lerman. “Employment Issues and Challenges in Post-Katrina New Orleans.” The Urban Institute (Febru-ary 2006). [23] Jacobson, Michael. Downsizing Prisons: How to Reduce Crime and End Mass Incarceration. New York: NYU P, 2005.

[24] LA Rev. Stat. 15:529.1.

[25] Lefstein, Norman. “The Movement Towards Indigent Defense Re-form: Louisiana and Other States.” Loyola Journal of Public Interest Law 9, no. 1 (2008): 125-38. [26] Mann, Phyllis. “Hurricane Relief Aid.” The Advocate- Louisiana Association of Criminal Defense Lawyers 2, no. 4 (2005): 3-6. [27] McCarthy, Brendan. “City’s murder rate drops in 2008.” The Times-Picayune (New Orleans), December 31, 2008. [28] Medina, M. Isabel. “Reforming Criminal Indigent Defense in Loui-siana.” Loyola Journal of Public Interest Law 9 (November 17, 2008): 111-25. [29] Mehta, Shreema. “New Orleans Public Defender System Rotten, Neglected.” The New Standard, December 18, 2007. [30] Metzger, Pamela R. “Doing Katrina Time.” Tulane Law Review 81 (2006): 1175-217. [31] Mitchell, Alvin. “Crime in New Orleans Before and After Hur-ricane Katrina: Is Homicide Part of New Orleans Culture.” New Or-leans Historical & Cultural Review 1, no. 1 (Summer 2007): 21-40. [32] Moore, Mark H., Carlos J. Martinez, Michael P. Judge, and Leonard Noisette. The Best Defense is No Offense: Preventing Crime through Effective Public Defense. Working paper no. 02-07-03. Cambridge: John F. Kennedy School of Government- Harvard Uni-versity, 2002. [33] Muller, Christopher. “The Case for Community Defense in New Orleans.” Criminal Justice Program (2006). [34] Nossiter, Adam, and Christopher Drew. “In New Orleans, Dys-function Fuels Cycle of Killing.” New York Times, February 5, 2007. [35] Orleans Public Defender. Selected Louisiana Crimes and Their Penalties. Working paper. New Orleans, 2009. [36] “The Road to Reform.” Louisiana Justice Coalition (LJC). http://www.lajusticecoalition.org/public+defense/road+to+reform (ac-cessed December 05, 2009).

[37] Robbins, Ira P. “Lessons from Hurricane Katrina: Prison Emer-gency Preparedness as a Constitutional Imperative.” University of MIchigan Law Journal 42, no. 1 (2008). [38] Robin, Natasha. “Public Defender’s office worries budget cuts will slow justice system.” Fox 8 Online, December 3, 2009. http://fox8live.com/ (accessed December 7, 2009). [39] Rumschlag, Toni. “Guantanamo Bayou: Remedying Sixth Amend-ment Violations Almost Three Years After Katrina.” Wayne Law Re-view 53 (2007): 1103-123. [40] Schwartz, Jeffrey A., and Rod Miller. “An Operational Review of the Orleans Parish Jails.” NIC TA Report (2008). [41] Simmons, Ann M. “42 New Orleans inmates to be freed.” USA Today, March 31, 2007, The Nation sec. [42] Singer, Steve I. “Indigent Defense in New Orleans: Better Than Mere Recovery.” Human Right Magazine 33, no. 4 (Fall 2006). [43] State v. Peart, LexisNexis (July 2, 1993). [44] Sullivan, Ronald S. Katrina Commentary. The Jamestown Project. http://www.jamestownproject.org (accessed December 3, 2009). [45] Toppo, Greg. “Big-city schools struggle with graduation rates.” USA Today, June 20, 2006. http://www.usatoday.com/news/education/2006-06-20-dropout-rates_x.htm (accessed October 16, 2009). [46] United States. Department of Justice. Bureau of Justice Statis-tics. State Prison Expenditures, 2001. By James J. Stephan. Series 202949. 2004. [47] Vance, Sarah S. “Justice After Disaster- What Hurricane Katrina Did to the Justice System in New Orleans.” Howard Law Journal 51, no. 3 (2008): 621-49. [48] Vargas, Ramon A. “Man gunned down in Desire Monday was acquitted 11 days ago of murder.” The Times-Picayune (New Or-leans), October 13, 2009, Crime sec. [49] Who Pays the Price for Orleans Parish’s Broken Indigent Defense System? A Summary of Investigative Findings. Report. New Orleans: Safe Streets/Strong Communities, 2006.



and resistance.




Terrorists on TrialMilitary Commissions and Federal Courts

Carissa Mueller

Introduction

On December 26, 2009, “Christmas Day bomber” Umar Farouk Abdulmutta-lab (UFA) was arrested at Detroit Met-ropolitan Airport and later indicted on six counts, including attempted murder, bringing an explosive on an aircraft, and use of a weapon of mass destruction [1]. His processing through the criminal jus-tice system generated complaints, the most concerning of which that he stopped providing valuable intelligence once he was read his Miranda rights. Critics of Attorney General Holder’s handling of the UFA situation argue that UFA should instead have been detained as an unprivi-leged enemy belligerent, interrogated un-der military custody, and charged accord-ingly in a military commission [2]. This situation raises the more general question of how to prosecute suspected terrorists who are apprehended within the United States. Many argue that they have violated federal criminal law and should therefore be charged and prosecuted in federal court. Others argue that they have violated the laws of war and should be

detained as unprivileged enemy belliger-ents—prosecuted, if appropriate, through a military commission. UFA is not the first to raise such a ques-tion. In 2001, suspected terrorist Ali Saleh Kahlah al-Marri was arrested at his home in Peoria, Illinois. Originally charged in federal court with credit card fraud and other criminal offenses, al-Marri was transferred to military custody and later back to the criminal justice system [3]. Similarly in 2002, suspected terrorist Jose Padilla was arrested at Chicago O’Hare International Airport, transferred to mili-tary custody, and ultimately sent back to the criminal justice system for trial [4].While each of these situations has raised the question of how to prosecute suspect-ed terrorists detained within the United States, the debate has focused predomi-nantly on broad weaknesses of the oppos-ing system. Proponents of prosecuting by federal court criticize military commis-sions for offering a sub-standard, biased form of justice. Opponents criticize the procedures required by the criminal jus-tice system as antithetical to our national security goals. Critics on both sides of the

Carissa Mueller

Carissa Mueller is a Duke senior from Kinnelon, New Jersey majoring in Public Policy. Carissa spent summers in Atlanta, the Philppines, and Washington, D.C. learning about the ground-level causes of and US policy approach to transnational crime. Most recently, Carissa interned at the US National Central Bureau INTERPOL in the Terrorism and Violent Crimes Division. There, she worked extensively on INTERPOL’s programs to control and monitor the travel of sex offenders into and out of the United States. On campus, Carissa founded an after school youth empowerment program and currently serves as the Chief of Organization Outreach for the Duke Partnership for Service. Upon graduation in May, Carissa hopes to pursue a career in juvenile justice and crime prevention in New York City This paper is a culmination of her research under the advisement of Professor David Schanzer at the Sanford School of Public Policy.


Terrorists on Trial

argument often fail to acknowledge that the military commission and federal courts are different systems, each appropriate in different scenarios. This paper specifically considers scenarios involving suspected terrorists who are arrested or detained on United States territory, as was the case with al-Marri, Pa-dilla, and UFA. In our ongoing conflict with international terror-ists that is sure to outlast the physical battles in Iraq and Afghanistan, situations similar to those of UFA, al-Marri, and Padilla are likely to surface again. In-deed, on May 4, 2010, Faisal Shahzad was arrested by the United States in connection with the failed Times Square bombing attempt of May 1, 2010 [5]. As such, it is important to develop a model for pros-ecuting suspected terrorists apprehended within the United States that is both grounded in legal prec-edent and that effectively accomplishes our policy goals. In this paper, I analyze both the military com-mission and federal court systems as applied in situ-ations involving suspects who are detained within the United States. I will show that based on this

contextual analysis, suspected terrorists detained within the United States, such as UFA, should be prosecuted in federal courts, not in military com-missions. I further propose a model to govern the law enforcement process that accounts for the ap-parent weaknesses of the criminal justice system and ensures that prosecuting by federal court remains in line with our policy objectives.

Legal Analysis: Military Commissions

Before evaluating the suitability of military commis-sions to prosecute UFA and others in his position, we must determine whether prosecution by military commission is even an option made available by the law. The use, jurisdiction, and process of the current military commission system are governed by the 2009 Military Commissions Act. Though the current system was put into place recently, we can trace the use of military commissions back to General George Washington, who appointed a “Board of General Of-ficers” in 1780 to try suspected British spy John An-

Times Square after the bombing attempt. [Source: wikimedia Commons]


dré [6]. Before dissecting the current law, it is helpful to understand the more recent developments that have shaped the law into its current form.

Recent History

Two months after the 9/11 attacks, President Bush issued an Executive Order authorizing the use of military tribunals to try any individual who the Pres-ident determined is or was a member of al Qaeda, or who had engaged, supported, or conspired to com-mit acts of international terrorism [7]. Since then, the Supreme Court, Executive, and Congress have all played active roles in shaping this original mili-tary tribunal authorization into the military com-mission system used today. In Rasul v. Bush, the Supreme Court expressed concerns with the military tribunals the President had authorized because of a lack of “any legal pro-ceeding” [8] to determine and review the detainees’ detention status. In response, the Executive created the Combatant Status Review Tribunal (CSRT) to provide such a hearing for each detainee. A CSRT includes a panel of three military officers and deter-mines whether each detainee was properly designat-ed as an enemy combatant [9] and therefore eligible by the Executive Order to be tried by a military tri-bunal. [10] One of the CSRT reviews and eventual military tribunal hearings involved the case of Salim Ahmed Hamdan, whose case ultimately ended up in the Su-preme Court. In Hamdan v. Rumsfeld, the Supreme Court found no law, including Article II of the US Constitution, which authorized the President to cre-ate any type of military tribunal he desired. In the absence of such law, statutory authorization by Con-gress was needed in order to create a military com-mission system to try enemy combatants. According to the Court, neither the Detainee Treatment Act of 2005 nor the Authorization for Use of Military Force (AUMF) constituted such Congressional authoriza-tion [11]. Therefore, the structure and procedures of the Executive’s military tribunal system of the time were invalid [12]. In response to the Hamdan ruling, Congress passed the Military Commissions Act of 2006, which provided statutory authorization for the use of mili-tary commissions to try unlawful enemy combat-ants. Congress has since replaced the Military Com-missions Act of 2006 with the Military Commissions Act of 2009. This current version of the law includes additional procedural safeguards supported by the Obama Administration. It is this Military Commis-sions Act of 2009 that governs the system presently

and thus that guides a subsequent analysis of the le-gal jurisdiction and framework of the military com-mission system.

Current Legal Framework

Statutory law grants military commissions jurisdic-tion over anyone who is 1) an alien, and 2) an unpriv-ileged enemy belligerent [13]. On the first require-ment, the statute defines an alien as any non-citizen [14]. Thus, only suspected terrorists who are not citizens of the United States may even be considered for prosecution by military commissions. The Supreme Court has upheld this requirement repeatedly. During the Civil War, President Lincoln established a military commission to try US citizens suspected of aiding the Confederacy. In Ex Parte Milligan, the Supreme Court denied his attempts, ruling that citizens must be prosecuted through ci-vilian court, so long as they are open and function-ing [15]. During World War II, President Roosevelt declared a state of martial law in Hawaii, fearing that the Hawaiian population (1/3 of which was Japa-nese) would provide cover for a Japanese invasion of the United States through Hawaii. Authorities then replaced civilian courts with military commissions. In Duncan v. Kahanamoka, the Supreme Court ruled this attempt invalid—US citizens may not be tried in military commissions, even during military emergency [17]. As a citizen of Nigeria and not of the United States, UFA fits this first criterion. Faisal Shahzad, on the other hand, is a citizen of the United States. In his case, prosecution by military commis-sion is not a legally available option. On the second requirement, the law defines “un-privileged enemy belligerent” as any individual other than a privileged belligerent that has (1) engaged in hostilities against the US or its partners, (2) purpose-fully and materially supported hostilities against the US or its partners, OR (3) was a part of al Qaeda at the time of the alleged offense [17]. Thus, the enemy must first not fall under the cat-egory of a “privileged belligerent.” The law distin-guishes privileged belligerence from unprivileged belligerence based on adherence to one of the eight categories enumerated in Article 4 of the Geneva Convention relative to treatment as a prisoner of war [18]. Since members of al Qaeda do not adhere to any one of these eight categories [19], they are not considered privileged belligerents [20].L ess clear is the application of the enumerated points of classification. The first two points con-cern participation in “hostilities,” but the scope of “hostilities” is not defined. While I will not debate

Carissa Mueller


that soldiers captured in an active war zone have participated in hostilities against the United States, [21] UFA was not captured on the physical battle-field. Rather, he was detained at an airport inside the United States. The law does not clearly define how far removed from the battlefield an unprivileged enemy belligerent may be apprehended and still be subject to full military custody and proceedings. The Supreme Court in Ex Parte Qurin suggests that location of capture is not particularly relevant in such determination. In Quirin, the Supreme Court upheld the jurisdiction of the military commission system over eight Nazi saboteurs captured within the United States [22].However, the government has encountered some difficulty in applying the Quirin precedent to al Qaeda members. In al-Marri v. Bush, for example, the district court considered whether al-Marri, a legal US resident alien, could be detained and held as an enemy combatant given that he was arrested within the United States. The dis-trict court upheld the validity of his detention [23]. On appeal, the Fourth Circuit reversed, ruling that a person who is lawfully inside the United States and who takes action to harm the United States is “subject to charge, trial, and punishment by civilian court, not to seizure and detention by military authority” [24].In the similar case of US citizen Jose Padilla, the district court found in favor of Padilla, rul-ing that he had been unlawfully detained as an enemy combat-ant [25]. Upon appeal, however, the Fourth Circuit reversed, find-ing his detention au-thorized. Padilla none-theless appealed to the Supreme Court, claiming that he could not be considered an unprivileged enemy belligerent because he was not arrested on a foreign battlefield, but rather within the United States [26]. Before the Supreme Court could review this case, the US Government transferred Padilla to civilian court. Both Padilla and al-Marri were tried in fed-eral court, convicted, and punished for their crimes.

Thus, we cannot say for certain how the Supreme Court would have ruled regarding the legality of their detention. More importantly, we do not know what the Supreme Court might have said regarding their participation in hostilities against the United States and thus their classification as unprivileged enemy belligerents, given their capture within the United States. In 2008, however, the Supreme Court extended the constitutional right to habeas corpus to detain-ees at Guantanamo Bay, finding that Guantanamo Bay was “tantamount” to US property [27]. Although this case dealt specifically with the issue of deten-tion, it extended constitutional rights to detainees on the simple basis that they were held in an area “tantamount” to US property. This suggests that those apprehended on US property would also have constitutional rights, regardless of their citizenship status. Such rights include the right to a trial by jury and other procedural safeguards not guaranteed by the Military Commission Act of 2009. Taken together, these case decisions might sug-gest that the law does not consider those captured

within the United States eligible for military com-mission hearings, but instead requires that they be prosecuted in federal court. Thus the legal jurisdic-tion of military commissions would not extend to UFA, Shahzad, and others who are detained within the United States.

Terrorists on Trial

Building of the Supreme Court of teh United States [Source: Wikimedia Commons]


Finally, we must consider the third point of clas-sification: whether a suspected terrorist was a part of al Qaeda at the time of the alleged offense [28]. The application of this point is again unclear. Making a distinction between members and non-members may be sufficient for traditional armies, but al Qaeda is not a traditional army. Al Qaeda does not associate with a particular state. Its organizational member-ship spans governments and nations, not excluding our own. The organization includes both active and inactive members, some of whose only connection to the organization may be self-proclaimed sympa-thy to the cause. The courts have provided some clarity regarding this definition in several habeas corpus cases where-in the court considered whether military detention was lawful. While this is a different question from who may be prosecuted by military commission, in the process of reviewing lawful detention, the courts are forced to consider the definition of al Qaeda membership, which is relevant to this discussion. The Supreme Court in Hamdi, for example, rec-ognized the difficulty with defining an al Qaeda member and explained that the lower courts would have to further define the “permissible bounds of the category” as subsequent cases are presented to them [29]. Since then, they have begun to do so. In Gherebi v. Obama, the DC District Court narrowed the distinction to those who “receive and execute” orders from al Qaeda’s command structure [30]. “Sympathizers, propagandists, and financiers” are thus excluded from the definition [31]. Although this case has also not been considered on appeal, the narrowest definition of an unprivileged enemy bel-ligerent could be therefore said to include battlefield captures and those who participate in the command structure of al Qaeda. In the case of UFA, news broadcasts report that UFA trained with al Qaeda in Yemen, was sent by al Qaeda to detonate an explo-sive in the United States, and that other operatives in Yemen are being trained for similar missions [32]. On this basis, UFA might be considered an al Qaeda member, but without a formal court ruling, we can-not be sure. Furthermore, because each of the points of classi-fication explained above is so contextual, the govern-ment must prove the defendant’s adherence to each point before continuing with a military commission hearing to determine guilt or innocence. For exam-ple, although UFA does meet the non-citizenship re-quirement, it would be more difficult to argue during trial that he falls under the category of “unprivileged enemy belligerent”. In a military commission hear-ing, the government would first need to make the

case that UFA is an unprivileged enemy belligerent before arguing his involvement in terrorist activities. Most importantly, even if UFA does meet the defi-nition of an unprivileged enemy belligerent, not all suspected terrorists apprehended within the United States will. Thus this process must be repeated each time the government wants to try a suspected ter-rorist by military commission. As subsequent policy analyses on both military commissions and federal courts will show, this extra burden of proof on the government is unnecessary when the federal court system can adhere equally well, if not better, to our country’s counterterrorism policy priorities.

Policy Analysis: Military Commissions

Even if the law would allow us to use military com-missions to prosecute UFA and others like him, we must still consider whether we should use them to prosecute suspected terrorists detained within the United States. The system we use to prosecute these detainees must not only fall within our legal bound-aries, but also must adhere to our country’s policy goals in our conflict with terrorism. Though one might reasonably identify countless goals associated with prosecuting suspected terror-ists, three of the more established and overarching goals include keeping our country safe, maintaining fair processes, and convicting those who are guilty and acquitting those wrongly accused.

National Security

I list this goal first because it irrefutably constitutes the most important goal in our overall conflict: keep-ing our country safe from violence is the very reason we engaged in hostilities in the first place. Preserv-ing our national security means not only captur-ing known terrorists and removing them from the battlefield, but also preventing attacks planned for the future from materializing. To do this, we must identify those who might be involved in planning future attacks and extract information from them regarding the details of their plans. Military commissions explicitly exclude all re-quirements for a speedy trial, [33] leaving no ques-tion that interrogators can take all the time that they need to gather intelligence before sending a detainee to trial by military commission. Further, military commissions exclude all protections offered to the accused against compulsory self-incrimination in federal courts [34]. Consequently, confessions that an interrogator obtains during questioning using coercion would be admissible in a military commis-

Carissa Mueller


sion, so long as the coercion does not involve “cruel, inhuman, or degrading treatment”, [35] which would amount to torture. The system we choose to prosecute terrorists must not only allow for the collection and use of such sensitive intelligence information; it must also keep this information secret from other terrorists who might use it to further harm the United States. Military commissions provide for this in an entire subchapter related to the protection of classified in-formation [36] and also allow for the judge to close trials to the general public [37]. These two allowanc-es guarantee that information sensitive to national security will not be leaked to any members of the public, including other terrorists.

Fair Process

These provisions and subchapters may uphold our goals of national security, but they do so at a cost to fair process. The updated Military Commissions Act of 2009 lessened the severity of these costs by formalizing processes better than they had been in the past. The present system, for example, prohib-its statements made under torture [38]—statements which were admissible in the past. It also gives the defendant a much more legitimate opportunity to obtain evidence and witnesses [39] than was avail-able in the past and includes a provision for capital offenses, [40] which had previously been absent. Despite these improvements, the procedural standards in military commissions remain sub-standard even as compared to their counterpart in the military court system, courts-martial. The courts-martial system is the more permanent and longstanding system of military justice, used to try privileged enemy belligerents and members of our own armed forces for alleged crimes. Courts-mar-tial have been fashioned over the years to mimic as closely as possible the procedural rules required in federal court. For example, in federal courts, the 6th Amendment together with the Speedy Trial Act of 1974 requires that a defendant be indicted within 30 days of arrest and brought to trial within 70 days of indictment. [41] Courts-martial have relaxed this right significantly, but still instruct that “immediate steps shall be taken” to initiate proceedings [42]. By including this provision, the courts-martial system at least acknowledges the importance of preventing unnecessary delays in trial and of resolving criminal cases in a timely fashion. On the contrary, the provi-sions governing military commissions bluntly refuse to apply this goal to terrorism prosecutions, listing the right to a speedy trial along with four others as

standards that “shall not apply to trial by military commission” [43]. Another example of unfair processes includes the lack of evidentiary rights, the most problematic of which has been limited and unenforceable discov-ery rights. The military commission hearing of Salim Ahmed Hamdan illustrates the severity of this prob-lem: Hamdan faced trial by military commission for material support to terrorism. During trial, the defense requested and the government was ordered to provide all records relating to his confinement. However, the prosecution did not provide any such documents until 9 days before the trial, submitting over 600 pages of detention records to the defense. At 9:15 PM the night before the trial, the govern-ment submitted another 500 pages, and submitted additional documents while the trial was already underway [44]. Some might use this example to il-lustrate that the military commission system does in fact have discovery rights in place. However, that the trial was permitted to proceed given that the defense received such a magnitude of evidence so close to the trial date also illustrates the unenforceability of those standards. Many would argue that terrorists do not deserve protection under such rules of procedure, but deten-tion does not guarantee guilt. Both federal courts and courts-martial pay close attention to maintaining fair processes because the United States has repeatedly recognized fair processes as a necessary safeguard to erroneous convictions of innocent people. A lack of fairness in court proceedings contributes to the dif-ficulty military commissions experience in achieving proper convictions and acquittals.

Proper Convictions and Acquittals

In our ongoing conflict with international terrorists, it is important to bring to justice in some form those who have taken actions to harm the United States. Despite their capacity to uphold national security goals, military commissions have also simply not proven effective in convicting terrorists. Since 2001, they have only secured convictions in 3 cases, the first of which involved David Hicks, an Australian who pled guilty to one count of material support and served a nine-month sentence at home in Australia [45]. The second involved Salim Ahmed Hamdan, who was captured in Afghanistan and sentenced to five and a half years in prison for material support charges. Because by that point his proceedings had already outlasted his sentence, he was released to his home country of Yemen to serve a one-month pris-on term [46]. The third involved Ali Hamza Ahmed

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Sulayman al Bahlul, who was sentenced to life in prison after boycotting proceedings and refusing to participate in any part of his trial [47]. None of these three cases involves a suspected terrorists detained anywhere within the United States. Even more troubling than the inability of military commissions to secure convictions is their inability to acquit and release those innocent of their accused crimes. Especially in the course of this current con-flict involving prevention, we are sure to inadver-tently apprehend some who truly have not commit-ted any wrongdoing. The system we use to prosecute suspected terrorists must recognize this possibil-ity and prove capable of acquitting those who have done no wrong. Further, the system must be willing to release those it finds innocent from improper de-tention. The current military commission system is un-able to do either of these things. The closest mili-tary commissions have come to acquitting someone in our current conflict with terror was in the case of Mohammad Jawad, a Guantanamo detainee be-lieved to have been around 14 or 15 years of age at the time of his apprehension [48]. Jawad was not ac-tually acquitted, but rather filed petition for habeas corpus in federal court, which resulted in a district judge’s ruling that he was improperly detained, end-ing his military commission hearing. Even if a military commission were to find a sus-

pect not guilty of his crimes, there is no guarantee that the defendant would then be released from cus-tody. In fact, the only defendant in a military com-mission released from custody was Jawad, and Jawad was released by a federal district judge who after hearing his habeas case ordered his release, stating that “[e]nough has been imposed on this young man to date” [49]. As the Supreme Court iterated numerous times [50], the government derives its authority to detain unprivileged enemy belligerents from the Authori-zation for Use of Military Force and the general con-cepts of law of war. The laws governing the military commission procedures, namely the Military Com-missions Act of 2009, are separate from the laws authorizing detention. Therefore, the government’s ability to prosecute a defendant in military commis-sion is not directly related to its ability to detain that suspect in military custody. Even if a commission were to acquit a defendant, the government would still have legal grounds for detention and nothing compels them to release those whom the courts find have not committed any wrongdoing. The Military Commissions Act of 2009 fails to provide any statutory instruction for the release of those acquitted of their charges. In fact, the Depart-ment of Defense recently released a manual detail-ing the rules used in military commissions [51]. This manual goes even further to explicitly assert that,

Carissa Mueller

Guantanamo military commission room [Source: Wikimedia Commons]


“even in the face of an acquittal, continued detention may be authorized” [52]. Though the military commission system pur-ports to “try alien unprivileged enemy belligerents for violations of the law of war and other offenses” [53] without the power to reach acquittals and affect the release of those it acquits, this system is inca-pable of maintaining any sense of justice. That the government may use continued detention as a back-stop to unsuccessful trials begs the question, why do military commissions exist at all when their deter-minations have no bearing on who we detain as our enemy? Whichever system we develop to prosecute suspected terrorists should not be just a show of due process, but rather a true arbiter of justice that we entrust to determine who has acted against the Unit-ed States and who has not. The system we construct should empower us to take appropriate retributive action only against the people who have taken action against the United States and not those who were found innocent of their accusations. Though military commissions may provide a con-fident guarantee of our national security, they do so at costs both to fairness and justice. These are costs we may be willing to bear in the prosecution of sus-pected terrorists detained in active zones of combat, for whom conviction and removal from battle might be impossible with a system any more just or a pro-cess any more fair. As the court in Hamdi reasoned, the United States has strong incentive to convict these detainees and keep them from returning to the battlefield [54]. For such detainees, military com-missions provide a good way to implement as much due process as possible while maintaining our goals of successful conviction and national security.This logic does not, however, apply to suspected ter-rorists apprehended within the United States. For such suspects, there exists another option for prose-cution that can, with proper implementation, main-tain national security while upholding our country’s principles of justice and fairness.

Legal Analysis: Federal Courts

The United States uses the federal courts to prose-cute and sentence those who violate federal criminal law. Federal law defines international terrorism as, “violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States…or that would be a criminal violation if committed within the jurisdiction of the United States” [55]. The United States outlaws international terror-ism in over ninety federal laws [56]. These include laws that prohibit the acts themselves, such as using

weapons of mass destruction [57], bombing public places [58], and hijacking an airline [59]. They also include laws that prohibit measures taken in prepa-ration of these acts, such as receiving “military-type” training from a foreign terrorist organization [60]; steps taken to support these acts, such as financing terrorism [61]; and general illegal actions that apply to terrorists, such as homicide [62] and treason [63]. Such a broad scope of federal law allows us to pros-ecute suspected terrorists not only for committing terrorist acts, but also for supporting them or plan-ning them. Based upon these laws, the jurisdiction of federal courts certainly extends to suspected ter-rorists arrested within the United States.

Policy Analysis: Federal Courts

As with an analysis of military commissions, we must also consider to what degree the processes of the federal courts adhere to the same counterterror-ism policy goals listed previously. Contrary to mili-tary commissions, however, federal courts are able to maintain national security without sacrificing fairness or proper convictions and acquittals.

Proper Convictions and Acquittals

The United States has been prosecuting modern ter-rorists since modern terrorism began with the rise of groups like the Popular Front for the Liberation of Palestine (“PFLP”) and Black September in the 1970s, and Hezbollah and Hamas in the 1980s [64]. Also in the 1980s, the federal courts convicted prominent terrorists Mohammed Rashed [65], Fawad Yunis [66], and Omar Rezaq [67] in a series of high profile airline hijacking cases. Later after the World Trade Center bombing of 1993, the government continued this trend by prosecuting and convicting 25 terror-ists in federal courts for their roles in the bombings [68]. After the 1998 US Embassy bombings in Ke-nya and Tanzania, the federal courts prosecuted and convicted five terrorists for their involvement in the incidents [69]. In our more recent post-9/11 conflict, the United States has prosecuted 214 defendants for terrorism-related charges prior to June 2, 2009. Of these, 195 were convicted either by verdict or guilty plea [70]. This success rate shows that the federal courts can handle the complexities and evolving challenges of modern terrorism. The capability of the federal courts to convict de-fendants of terrorism is especially true of suspects detained within the United States. In 2001, British citizen and self-proclaimed al Qaeda member Rich-

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Carissa Mueller

ard Reid was arrested at Logan International Air-port in Boston for attempting to detonate explosives on American Airlines flight 63. Although Reid was not a US citizen and admitted to involvement with al Qaeda and therefore might have been eligible for trial by military commission, he was tried success-fully in a federal court. Reid pled guilty to 9 counts and was sentenced to 3 consecutive life sentences with no possibility of parole [71]. Also in 2001, Ali Saleh Kahlan al-Marri, citizen of Qatar, was arrested, charged, and pled not guilty to credit card fraud [72]. Al-Marri was then moved into military custody [73], and shortly thereafter back to the federal courts [74] where in 2009, he pled guilty and was sentenced to 15 years in prison [75]. Later in 2002, US citizen Jose Padilla was arrested at Chicago O’Hare International Airport as a materi-al witness. He too was transferred into [76] and ulti-mately back out of military custody. When he finally faced trial in federal court in 2007, he was convicted for conspiring to commit terrorism and sentenced to 17 years in prison [77]. In 2003, naturalized US citizen Iyman Faris was arrested and charged for his plot to blow up the Brooklyn Bridge. He pled guilty in federal court and received a 20-year prison sen-tence [78]. These cases illustrate the capacity of the federal courts to achieve convictions not only in terrorism cases generally, but also more specifically in cases in-volving terrorists detained within the United States. In fact, there has never been a suspected terrorist ap-prehended within the United States who has under-gone trial by military commission. UFA’s particular case, including terrorist activities and conditions of arrest, almost directly mirrors that of Richard Reid, who was charged, prosecuted, and sentenced effec-tively in federal court. History provides no reason that our tradition of prosecuting terrorists in federal court should end with Reid.

Fair Processes

Not only are federal courts better able than military commissions to achieve proper convictions, they also espouse the fair processes which military commis-sions surrender. In surrendering these processes and requirements, military commissions lose the value that they offer in safeguarding against such problems as unnecessary or detrimental trial delays, erroneous convictions, or violations of the defendant’s rights. On the contrary, federal courts operate by a system that finds a way to uphold goals of national security without compromising the rights of the accused.

1. Right to a Speedy Trial:

As previously mentioned, the Sixth Amendment together with the Speedy Trial Act of 1974 requires that a defendant be indicted within 30 days of arrest and brought to trial within 70 days of indictment [79]. Contrary to military commissions, the feder-al courts embrace the value of this requirement to preventing unnecessary delays, such as the six-year delay faced by Salim Ahmed Hamdan or the five-year delays faced by both al Bahlul and David Hicks, even despite Hicks’s guilty plea. Such delays are problematic not only to defendants, especially those ultimately acquitted, but also to the government and the public, whose actions and beliefs sometimes depend on the results of terrorism hearings. Critics assert that upholding this right comes at a cost to successful convictions in terrorism tri-als, as many terrorism cases require more time for preparation, subpoena of material and witnesses, and processing of voluminous information. Fur-thermore, critics point out that this right could be problematic in trying detainees of the past who have already been in custody for longer than 100 days. In spite of complaints, the 2008 Supreme Court decision in Boumediene to extend constitutional rights to detainees at Guantanamo Bay because Guantanamo is “tantamount” to US property sug-gests that we may have no choice but to extend the constitutional right to a speedy trial also to terror-ists apprehended on US property. Rather than deny-ing this right, we must find ways to apply it without compromising our other policy goals. The courts have interpreted the right to a speedy trial to depend on a number of factors, including the reason for the delay [80]. Furthermore, the Speedy Trial Act itself allows for expansions of the time limit if “the case is so unusual or complex…that it is unreasonable to expect adequate preparation…within the time limits established” [81]. Based on these allowances, the courts have fashioned solutions to overcome this difficulty. In United States v. al-Arian [82], for example, the de-fense motioned to dismiss based on the speedy trial requirement. The court reasoned that the case was complex and dealt with a relatively new area of law (terrorism), predicted that it would be faced with novel questions of fact and law, and acknowledged the sheer magnitude of evidence involved (includ-ing over 21,000 hours of phone conversations re-corded in Arabic). Based on those observations, the court had no problem dismissing the motion and the speedy trial requirement with it.


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2. Confrontation Rights:

The Sixth Amendment also provides the right of the accused to confront witnesses against him. In federal courts, this right is typically manifested as the right to cross-examine witnesses. The military commission system also provides this right to the accused [83], but the federal courts have nonethe-less been criticized for their failure to balance this right with the goal of successful convictions in ter-rorism trials. In particular, critics express concern that certain key witnesses may not be available for testimony, rendering the government incapable of making a proper case. The court again crafted a creative solution to this issue in United States v. Abu Ali [84]. Arrested in Saudi Arabia, Abu Ali gave incriminating evidence and confessions to Saudi authorities. During trial in federal court, Abu Ali claimed those statements were given under torture. The court required testi-mony from the interrogators to validate his claim, but the Saudi government would not permit their travel to the US and they were outside the subpoena power of the court. To solve this problem, the court authorized prosecutors, two defense attorneys, and a translator to travel to Saudi Arabia and interview interrogators over a live two-way video feed. The feed was broadcast in a US courtroom, where the judge, Abu Ali, and one other defense attorney were present for cross-examinations. Abu Ali also had a mobile phone link to his attorneys in Saudi Arabia for private conferences. The defense may also invoke confrontation rights to gain access to a witness who might corroborate the defendant’s claims. Critics attest that this may become problematic in terrorism cases at times when the government cannot provide access to cer-tain individuals for security reasons. This issue surfaced in United States v. Moussaoui [85]. In his trial, Moussaoui, charged in connection to the 9/11 attacks, requested access to several en-emy combatants, including Khalid Sheikh Moham-mad and Ramzi Binalshibh [86], who he claimed would deny his involvement in the attacks [87]. For security reasons, the government does not want ter-rorism suspects to have access to other accused al Qaeda operatives in its custody and therefore did not want to grant Moussaoui his request. The courts agreed and instead authorized the government to introduce substitute written testimony from the re-quested detainees that could adequately encompass any exculpatory information they might have [88]. Solutions such as these have become examples to other courts needing to fulfill confrontation rights

without compromising the court’s ability to convict guilty defendants.

3. Hearsay:

The Federal Rules of Evidence define hearsay as, “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evi-dence to prove the truth of the matter asserted” [89]. Hearsay is prohibited from federal courts as part of the rules of procedure [90] in effort to prevent the admission of evidence, the truth of which cannot be corroborated. Military commissions, on the other hand, allow it [91]. Opponents of using the courts to prosecute ter-rorism believe that hearsay must be allowed in ter-rorism trials, since the declarant of the statement may not be available to testify in court and the only remaining option for admitting the information is hearsay. However, the Federal Rules of Evidence also pro-vide 33 exceptions to the hearsay rule [92]. Rule 804, for example, allows for an exception of the Hearsay rule if the declarant is unavailable, refuses to testify regarding the statement, or cannot recall the state-ment. Rule 807 allows for “residual exception” by which the judge may make an impromptu exception to the hearsay rule. Further, the language in the law allows for both the Supreme Court and Congress to create rules to limit the use of hearsay in certain situations [93]. Issues involving the admissibility of hearsay in terrorism trials may also be resolved by the issuance of substitute information. If the issue in terrorism trials is the unavailability of a witness to validate certain hearsay testimony, the court could authorize the government to introduce a substitute written testimony from the hearsay declarant to verify its truth, similar to the way in which the government used substitute written testimony to satisfy Mous-saoui’s confrontation rights.

Federal courts have developed such requirements as the right to speedy trial, confrontation rights, and prohibitions of hearsay in order to ensure a fair process to all involved parties. Terrorism trials do test these processes, but the federal courts are not machines that mindlessly apply a pre-written set of rules. Rather, federal courts are controlled by judges and juries who understand the importance of con-victing guilty terrorists and the unique challenges the courts face in terrorism trials. The courts have proven their ability to develop creative solutions to upholding these fair processes amidst difficult cir-


Carissa Mueller

cumstances and will continue to do so in the future.

National Security

Whereas military commissions uphold national se-curity goals through the exclusion of procedural rights, federal courts uphold them through the proper application of those processes. Just as with military commissions, federal law includes an entire appendix related to the protection dur-ing trial of classified information that, if leaked to terrorists or to the public, could harm the United States [94].US law enforcement has repeatedly proven its ability to use federal investigations to uncover complex terrorism networks and plots within the United States. After the 1993 World Trade Center bombing, for example, an FBI investiga-tion unveiled a terrorist cell operating in New York and New Jersey, which was planning bomb-ings of the Holland and Lincoln tunnels and the United Nations building. The FBI later arrested, charged, and convicted thirteen conspirators of these plans in federal court [95]. More recently, the May 4, 2010 arrest and in-vestigation of Faisal Shahzad, who attempted to detonate explosives in Times Square, has led to the discovery of another web of US-based ter-rorists. This network includes some high pro-file names, including Anwar al-Aulaqi, who has been linked to a number of other terrorism plots including those of 9/11; Major Nidal Malik Has-san, arrested for the shootings at Fort Hood; and UFA. Despite these successes, critics of the federal courts continue to maintain that upholding in particular discovery and Miranda rights inter-feres with national security interests.

1. Discovery Rights:

In terrorism cases, the courts face the challenge of balancing the defendants’ rights to confront the evidence and witnesses against them [96] with the need to protect classified information that, if dis-closed, could impact national security. Enacted by the Carter administration facing these same problems during the Cold War [97], the Clas-sified Information Procedures Act (CIPA) allows for either party to move for a conference to consider the admissibility of classified information [98]. If the court determines that the classified materials must be disclosed but pose risk to national security, it can authorize that a substitute form of the materials be

provided. The court has used CIPA to fashion creative solu-tions to issues involving disclosure of sensitive in-formation. For example, in United States v. Abu Ali [99], the Fourth Circuit Court of Appeals upheld the

District Court’s decision to exclude Abu Ali and his defense attorney (who did not have security clear-ance) from discussions about materials protected under CIPA. In United States v. Rosen [100], the court developed a “silent witness rule”, which in-volved the creation of a series of “codes” for certain names, people, and other sensitive information that it determined should not be disclosed to the pub-lic. The court provided the judge, jury, counsel, and witnesses with a “key” explaining what each “code” meant, and they were instructed to use code words for certain names, locations, and other details that the court determined should remain secret. This

Picture of the 1993 World Trade Center bombing [Source: Wikimedia Com-mons]


key was not provided to the public, so this method allowed the court hearings to proceed without dis-closing compromising information. Some point out that CIPA does not consider the possibility that a defendant seeks to exercise his right to self-representation [101] at trial. In situations in which it would compromise national security to dis-close certain evidence to the defendant, the court would be forced to make an impossible decision be-tween maintaining the integrity of secret informa-tion and allowing a fair trial for the defense. While CIPA does not explicitly include a provision for this scenario, the courts have addressed it. For example, in United States v. Moussaoui [102], the court de-nied Moussaoui’s request for self-representation. This exception to the right to self-representation is grounded in the Sixth Amendment, but this excep-tion to protect classified information has already been validated by the court and it is therefore likely that other courts will be able to deny self-represen-tation requests in future terrorism trials on the same basis.

2. Miranda rights:

By far the more troubling argument raised against the federal courts involves concerns that reading Miranda rights to a suspect upon arrest might de-ter that suspect from providing intelligence vital to the security of the United States. But closer analysis of Supreme Court precedent shows that Miranda rights are not nearly as problematic in maintaining national security as critics assert. Established in Miranda v. Arizona [103], Miranda rights are meant to protect suspects against compul-sory self-incrimination. In Michigan v. Tucker [105], however, the Court explained that Miranda require-ments are not themselves constitutional rights, but rather procedural safeguards for protecting a suspect’s Fifth Amendment rights. Failure to read Miranda rights is not itself a violation of the Consti-tution unless the questioning officer also compelled the suspect to incriminate himself [105]. The Supreme Court later expanded upon this distinction by establishing a more formal “public safety” exception to the Miranda requirements that applies in terrorism cases. In New York v. Quarles [106], the Court acknowledged that Miranda some-times sacrifices information that would be helpful in court for the sake of upholding the defendant’s rights. According to the Court, this is not a cost that we can afford to bear when the sacrificed informa-tion might help preserve the public safety. The FBI has recently begun applying this excep-

tion to terrorism investigations. After UFA was ap-prehended, the FBI conducted an initial interroga-tion to gather certain intelligence before reading him his Miranda rights [107]. The FBI has been heavily criticized, though, for the length and quality of this interrogation. The pre-Miranda questioning lasted approximately fifty minutes while doctors prepared him for surgery to treat the burns sustained during his failed attack [108]. These criticisms only escalat-ed when UFA stopped providing information once the FBI read his Miranda rights [109]. In fact, the law suggests that the FBI can expand and improve such pre-Miranda interrogation in ac-cordance with two additional Supreme Court rul-ings [110]. In Missouri v. Seibert [111], the Court outlined specific guidelines that would ensure the validity of pre-Miranda interrogation, midstream Miranda warnings, and post-Miranda question-ing. These considerations include 1) completeness and detail of the questions asked and answers given in the pre-Miranda interrogation, 2) the degree to which content in each session overlaps, 3) timing and setting, 4) continuity of police personnel, and 5) the degree to which the interrogator’s questions treat the post-Miranda questioning as a continua-tion of the pre-Miranda interrogation [112]. These rulings suggest that law enforcement could actually implement a much lengthier and more so-phisticated pre-Miranda interrogation as long as they adhere to the guidelines given in Seibert. In particular, the pre- and post-Miranda questionings should be conducted by different people in differ-ent locations, after sufficient time has elapsed. Each questioner should have no knowledge of the ques-tions asked, information obtained, or strategies em-ployed by the other. The pre-Miranda questionings could be con-ducted by the newly created High-Value Detainee Interrogation Group (HIG), which was created spe-cifically for this purpose [113]. The HIG includes experts from multiple intelligence and law enforce-ment agencies and so should be able to leverage the resources of multiple agencies to act quickly on in-formation gleaned during interrogations. To maintain integrity of the procedure, the HIG should define a timeline at the beginning of this phase. Although the suspect does not need to know this timeline, indefinite detentions are not authorized unless the suspected has lawfully vio-lated the laws of war, so some timeline should be defined. Timelines as long as several months should be permissible when they are necessary, so long as a concrete threat to public safety exists and law en-forcement deliberately and explicitly adheres to the

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guidelines outlined in Siebert. The clear definition of a timeline, the existence of a public safety threat, and close adherence to the procedures outlined in Siebert should constitute the due process required by the constitution. After the HIG finishes gathering the necessary in-telligence information, law enforcement should for-mally arrest the suspect, read Miranda rights, and initiate normal processes for collecting testimonial evidence necessary for successful conviction. These processes should take place at a different location from the HIG interrogations. Separating intelligence gathering from evidence collection in terrorism trials as proposed here al-lows unhindered inquiry into national security con-cerns while upholding a defendant’s right against self-incrimination. In this way, this proposed model ensures that Miranda rights do not come at the cost of information that is necessary for maintaining the safety of the United States and its citizens, a cost that the Court in Quarles reasonably identified as unac-ceptable. In addition to close adherence to the three pre-viously identified goals in our current conflict with terror, we must ask ourselves if we really want to apply the laws of war inside the United States as if this were a war zone. Although the AUMF has de-fined al Qaeda as our enemy and although al Qaeda members could reside within the United States, our military does not engage in active battle inside US territory. When suspected al Qaeda supporters are believed to within the United States, the FBI tracks them down and captures them, not the armed forc-es. We would not want our military to target any-thing inside the United States with drone strikes, as it may do in the deserts of Afghanistan. These ac-tions would not only cause significant unrest and disruption to normal life; they would also put our own civilians at continual risk of collateral damage. In fact, a wealth of law dating back to the Posse Co-mitatus Act of 1878 [114] specifically forbids the use of the military within the United States and forms the basis of the differing jurisdictions of the FBI and the armed forces. Finally, we should not underestimate the way fed-eral courts involve the entire country in the struggle against terrorism. It will require more than military success to win our global fight against terrorism. Victory in this conflict depends on our ability to leverage all of our country’s resources against ter-rorists and in support of American values of justice, freedom, and prosperity. The strength of its people is and has always been a defining force in American history, and it is important for us to continue to take

advantage of this power in our conflict with terror-ism. Trial by federal court is open to public atten-dance, and proceedings are broadcast and transpar-ent to the American people. This allows citizens to participate in the fight—to rally behind successful prosecutions, to become infuriated at occasional setbacks, and ultimately to amplify our collective voice in rejection of terrorism as a part of our soci-ety.

Conclusion

Military commissions and federal courts both play important roles in our ongoing conflict with global terrorism. Although for both legal and policy rea-sons, federal courts are more appropriate for pros-ecuting terrorists apprehended within the United States, military commissions are more appropriate for prosecuting other categories of detainees, such as those captured in zones of combat. We should think of military commissions and federal courts not as forces in constant opposition, but rather as two separate systems with different ju-risdictions. Each has its own strengths and limita-tions, and each can inform the other in how to be-come a more effective handler of terrorism-related cases. The situation involving UFA illustrates how US officials are beginning to treat the two systems in this way. UFA’s case is one of very few more recent cases to involve pre-Miranda interrogations. But with an unnecessarily short interrogation process, the UFA case also illustrates how much left there is to learn, and in what ways law enforcement can still improve. Constant learning is not a new feature of either federal courts or military commissions. Just as mili-tary commissions have evolved to include basic safeguards, such as the prohibition of statements given under torture, the federal courts have evolved creative solutions for balancing procedural rights with national security concerns. Federal courts have adapted to challenges of the past, are addressing emerging threats of terrorism in the present, and will continue to solve new issues in the future. In our global fight against terrorism, we can and must entrust the federal courts to prosecute terrorists de-tained within the United States.------------------------------------------------------[1] Indictment, United States v. Umar Farouk Abdulmutallab, No. 2:10-cr-20005. [2] Lieberman, Joseph I. and Collins, Susan M. Letter to AG Holder, Eric H. Jr. and Brennan, John O. 25 January 2010.[3] Fisher, Louis. The Constitution and 9/11: Recurring Threats to America’s Freedoms. Lawrence, Kansas: University Press of Kansas: 2008. Pp 209-10.

Carissa Mueller


[4] Id. at 197-209.[5] Mazzetti, Mark; Tavernise, Sabrina; and Healy, Jack. “Suspect, Charged, Said to Admit Role in Plot.” The New York Times. 4 May 2010.[6] Id. at 173.[7] Detention, Treatment, and Trial of Certain Non-Citizens in the War on Terrorism. 13 Nov. 2001, 66 Fed. Reg. 57, 833.[8] Rasul v. Bush, 542 U.S. 487-88 (2004).[9] “Enemy combatant” was the preferred phrase at the time to refer to enemy terrorists who had violated the laws of war. Since then, the Obama Administration has replaced this with the phrase “unprivi-leged enemy belligerent”.[10] Department of Defense, New Transcript, “Defense Department Background Briefing on the Combatant Status Review Tribunal,” July 7, 2004.[11] Hamdan v. Rumsfeld, 126 Sup. Ct. 557 (2006) at 2749-75[12] Id. at 2786[13] 10 U.S.C. 948(c)[14] 10 U.S.C. 948(a)(1)[15] Ex Parte Milligan, 71 U.S. 2 (1866)[16] Duncan v. Kahanamoka, 327 U.S. 304 (1946)[17] 10 U.S.C. 948(a)(7)[18] 10 U.S.C. 948(6)[19] For an in-depth explanation justifying the determination of al Qaeda members as illegal combatants as opposed to legal combat-ants, refer to Aldrich, George H. “The Taliban, al Qaeda, and the Determination of Illegal Combatants.” American Journal of Interna-tional Law, Vol. 96 no. 4 (Oct. 2002) pp. 891-898.[20] Privileged belligerents instead fall under the jurisdiction of courts-martial.[21] See Hamdi v. Rumsfeld, 542 U.S. 507 (2004) for a more de-tailed explanation of why battlefield captures fall under jurisdiction of military commissions.[22] Ex Parte Quirin, 317 U.S. 1 (1942)[23] al-Marri v. Bush, 274 F. Supp. 2d 1003-2003 (C.D. Ill. 2003).[24] al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007) at 186; al-Marri v. Pucciarelli, No. 2:04-cv-002257-HFF (D.S.C., Jul. 15, 2008); Sherman, Mark and Barret, Devlin. “Ali al-Marri, Alleged Al-Qaida Agent, Indicted in Illinois Federal Court”. The Huffington Post. 27 February 2009. Although the Fourth Circuit decision was reversed en banc, the case was appealed to the Supreme Court; before the Su-preme Court heard the case, the government transferred Padilla to federal court. Many legal reviews suggest that if the Supreme Court had heard this case, they would have mandated al-Marri’s transfer to the federal courts. [25] Padilla ex re. Newman v. Rumsfeld, 243 F.Supp.2d 42 (S.D.N.Y. 2003)[26] Petition for Writ of Habeas Corpus, June 30, 2004. Joint Ap-pendix, Padilla v. Hanft, No. 05-6396 (4th Cir. 2004), at 7.[27] Boumediene v. Bush, 553 U.S. ____ (2008).[28] 10 U.S.C. 948a(7).[29] Id. at 2642[30] Gherebi v. Obama, 609 F. Supp. 2d at 68 (D.D.C. 2009)[31] Id.[32] Whittell, Giles. “I’m the first of many, warns airline ‘bomber’ Umar Farouk Abdulmutallab”. The Times. 29 December 2009. [33] 10 U.S.C. 948b(d)(A)[34] The Constitution of the United States, Amendment 5[35] This is prohibited by 10 U.S.C. 948r.[36] 10 U.S.C. 949 p-1, p-7[37] 10 U.S.C. 949d(c)[38] 10 U.S.C. 949s[39] 10 U.S.C. 949j[40] 10 U.S.C. 949a(2)(c)(ii)[41] 18 U.S.C. 3161[42] UCMJ Sec. 810, Art. 10.[43] 10 U.S.C. 948b(d)

[44] Sullivan, Stacy. “Guilty in Guantanamo”. Human Rights Watch. 7 August 2008. <http://www.hrw.org/legacy/english/docs/2008/08/07/usint19560.htm>[45] United States Department of Defense. “Hicks Court Motions”. 2 Dec. 2004. <http://www.defense.gov/news/Dec2004/commis-sions_motions_hicks.html>; Human Rights First. “The Case of David Hicks, Australia.” < http://www.humanrightsfirst.org/us_law/detain-ees/cases/hicks.aspx>[46] United States Department of Defense. “Hamdan Court Mo-tions”. 3 Dec. 2004. <http://www.defense.gov/news/Dec2004/commissions_motions_hamdan.html>; Human Rights First. “The Case of Salim Ahmed Hamdan, Yemen.” < http://www.humanrightsfirst.org/us_law/detainees/cases/hamdan.aspx>[49] United States Department of Defense. “Al Bahlul Court Motions”. 2 Dec. 2004. <http://www.defense.gov/news/Dec2004/commis-sions_motions_albahlul.html>; Human Rights First. “The Case of Ali Hamza Ahmed Sulayman al Bahlul, Yemen”. <http://www.human-rightsfirst.org/us_law/detainees/cases/bahlul.aspx>[49] Reports of his age vary depending on the party making the claim. See also:“Mohammad Jawad”. The New York Times. 29 Jul. 2009. <http://topics.nytimes.com/topics/reference/timestopics/people/j/moham-med_jawad/index.html>; Human Rights First. “The Case of Mo-hammad Jawad, Afghanistan.” <http://www.humanrightsfirst.org/us_law/detainees/cases/jawad.aspx>[50] Glaberson, William. “Judge Orders Guantánamo Detainee to be Freed”, quoting District Judge Ellen Segal Huvelle. 30 Jul. 2009. < http://www.nytimes.com/2009/07/31/us/31gitmo.html>

[51] Department of Defense. Manual for Military Commissions. Unit-ed States, 2010.[52] Id. at p. II-139.[53] 10 U.S.C. 948(c)[54] Hamdi v. Rumsfeld, 542 U.S. 507 (2004) at 518[55] 18 U.S.C. 2331(1)[56] These laws are listed at: Zabel, Richard B and Benjamin Jr., James J. “In Pursuit of Justice: Prosecuting Terrorism Cases in the Fed-eral Courts.” Human Rights First. May 2008. Pp. 137-141. [57] 18 U.S.C. 2332a[58] 18 U.S.C. 2332f[59] 49 U.S.C. 4602[60] 18 U.S.C. 2339d[61] 18 U.S.C. 2339c[62] 18 U.S.C. 2332[63] 18 U.S.C. 2381; The Constitution of the United States, Article 3, Section 3[64] Id. at pp. 13-14.[65] United States v. Rashed, No. 87-cr-00308 (D.D.C. July 14, 1987)[66] United States v. Yunis, No. 87-cr-00377 (D.D.C. Sept. 15, 1987) [67] United States v. Rezaq, No. 93-cr-00284 (D.D.C. July 15, 1993)[68] United States v. el-Gabrowny, No. 93-cr-00181 (S.D.N.Y. Nov. 21, 1994)[69] United States v. el-Hage, No. 1:98-cr-01023-KTD (S.D.N.Y. Sept. 21, 1998). See Judgments as to Wadih el-Hage (Dkt. No. 637), Khalfan Khamis Mohammed (Dkt. No. 638), Mohamed Rashed Daoud al-‘Owhali (Dkt. No. 640), and Mohamed Sadeek Odeh (Dkt. No. 641)[70] Zabel, Richard B and Benjamin Jr., James J. “In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, 2009 Update and Recent Developments.” Human Rights First: July 2009. Pp. 5-11.[71] United States v. Reid, No. 1:02-cr-10013-WGY (D. Mass. Jan. 16, 2002); Elliot, Michael. “The Shoe Bomber’s World”. Time Maga-zine. 16 Feb 2002.; Younge, Gary and Campbell, Duncan. “Shoe-bomber sentenced to life in prison”. The Guardian. 31 Jan 2003.


[72] Fisher, Louis. The Constitution and 9/11: Recurring Threats to America’s Freedoms. Lawrence, Kansas: University Press of Kansas: 2008. P. 209.[73] Rapp, Jeffrey. Joint Intelligence Taskforce for Combating Terror-ism. “Classified Declaration of Mr. Jeffrey N. Rapp”. 2:04-cv-02257-HFF-RSC. 5 April 2006.[74] Schwartz, John. “Accused Qaeda Sleeper Agent in Court.” The New York Times. 23 March 2009. [75] Al-Marri v. Bush, 274 F.Supp.2d 1003, 1004 (C.D. Ill. 2003)[76] Mobbs, Michael. “Declaration of Michael H. Mobbs, Special Ad-visory to the Under Secretary of Defense for Policy.” 27 Aug. 2002.[77] Semple, Kirk. “Padilla Gets 17-Year Term for Role in Conspira-cy.” New York Times. 23 Jan. 2008. [78] United States v. Faris, No. 1:03-cr-00189-LMB (E.D. Va. Apr. 30, 2003); “KSM’s Brooklyn Bridge Plot”. Report #8 in a NEFA series, “Target: America”, a NEFA analysis of U.S. v. Faris. The NEFA Founda-tion. August 2007[79] 18 U.S.C. 3161[80] Barker v. Wingo, 407 U.S. 514 (1972)[81] 18 U.S.C. 3161(h)(7)(b)(2)[82] United States v. al-Arian, 329 F. Supp. 2d 1294 (M.D. Fla. Aug. 4, 2004)[83] 10 U.S.C. 949a(b)(2)(A)[84] United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008)[85] United States v. Moussaoui, No. 1:01-cr-00455-LMB (E.D. Va. Dec. 11, 2001)[86] The other names remain classified.[87] Hirschkorn, Phil. “Moussaoui requests access to al Qaeda cap-tives.” CNN Law Center. 24 March 2003.[88] United States v. Moussaoui, 365 F.3d 292 (4th Cir. 2004)[89] Federal Rules of Evidence, Article VIII, Rule 801[90] Federal Rules of Evidence, Article VIII, Rule 802[90] 10 U.S.C. 949a(b)(3)(D)[91] Federal Rules of Evidence, Article VIII, Rules 801(d), 803-4, 807.[92] Federal Rules of Evidence, Article VIII[93] 18 U.S.C. Appendix iii. [94] Zabel, Richard B and Benjamin Jr., James J. “In Pursuit of Jus-tice: Prosecuting Terrorism Cases in the Federal Courts.” Human Rights First. May 2008. P. 15.[95] Brady v. Maryland, 373 U.S. 83, 87 (1963); The Constitution of the United States, Sixth Amendment.[96] Turrin, Serrin and Schulhofer, Stephen J. “The Secrecy Problem in Terrorism Trials.” Liberty & National Security Project. Brennan Center for Justice at NYU School of Law: 2005. Pp. 18-19.[97] 18 U.S.C. app. 3[99] United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008)[100] United States v. Rosen, No. 05-cr-00225, 2007 WL 3243919[101] This right recognized in Faretta v. California, 422 U.S. 806. (1975)[102] United States v. Moussaoui, No. 1:01-cr-00455-LMB (E.D. Va. Dec. 11, 2001)[103] Miranda v. Arizona, 384 U.S. 436, 458 (1966)[104] Michigan v. Tucker, 417 U.S. 433, 444 (1974)[105] Though the burden of proof rests on the prosecution to show that the evidence was not compelled.[106] New York v. Quarles, 467 U.S. 649 (1984)[107] Associated Press. “How Abdulmutallab was questioned.” MSN-BC. 24 Jan. 2010.[108] York, Byron. “Abdulmutallab interrogated for less than an hour; White House defends handling of terrorist case.” The Washington Examiner. 24 Jan. 2010.[109] Id.[110] Oregon v. Elstad, 470 U.S. 298 (1985); Missouri v. Seibert, 542 U.S. 600 (2004)[111] Missouri v. Seibert, 542 U.S. 600 (2004)[112] Id. at 611-612.

[113] Kombult, Anne E. “New Unit to Question Key Terror Suspects”. The Washington Post. 24 Aug. 2009.

[114] The Posse Comitatus Act, 20 Stat. 145 (1878).



and resistance.




Looking Beyond the Qur’an:

Given terrorists’ frequent refer-ences to the Qur’an and invo-cations of Islam, it is easy to classify America’s War on Ter-

ror as a religious war. But to do so is in-correct because it obscures the underlying motivations of the terrorists. It is true that terrorism in the Middle East has religious connections, but that is only because ter-rorists seek religious remedies and not be-cause of the root causes. America should therefore focus on winning the War on Terror without provoking religious ex-tremism by respecting the integrity and dignity of civilians within terrorist-con-trolled areas, focusing on winning over moderates, and considering negotiations with terrorist organizations. The underlying causes of Middle East terrorism are not religious. The main grievances made by Osama Bin Laden and Al-Qaeda against the United States include: support for Israel’s brutal treat-ment of Palestinians and Lebanese, sanc-tions on Iraq, use of the atomic bomb, poor environmental record, unequal dis-tribution of wealth, and military presence in Saudi Arabia. These criticisms can be

categorized as political, social, and eco-nomic yet terrorists have used religion to their advantage in three ways. First, ter-rorists have exploited disenfranchisement and hopelessness throughout much of the Muslim world by convincing Muslims that the West “steals” the wealth generated by Muslim countries’ natural resources (es-pecially oil) that is rightfully promised by Islam to Muslims. Second, the revo-lutionary Islamic Vanguard preys on the perception that the umma (community of Islam) has been exploited by the U.S.’s at-tempts to dictate internal policy in order to create an “ideologically-based global insurgency” [3]. Third, terrorists have emphasized the credibility gap between U.S. words and actions specifically in the Muslim world. Using these strategies, ter-rorists have attempted to create a religious conflict in order to rally Muslim popular support around a cause that they might not otherwise support. Given the non-religious terrorist mo-tivations, the U.S. must avoid making the War on Terror into a religious war. Amer-ica’s National Strategy for Combating Terrorism outlines two policy objectives:

Christopher Edelman

The Roots of Terrorism in the Middle East and the Corresponding Solutions

Christopher Edelman is a senior at Duke Univesrity. This short essay is the winner of the 2010 Duke Journal of Public Affairs Policy Competition focusing on religion and the War on Terror.

Christopher Edelman


“defeat violent extremism and create a global environment inhospitable to violent extrem-ists” [3]. These are the right ends, but the U.S. has not employed the right means. The U.S. must start by respecting the dig-nity and integrity of Middle Eastern nations by building democratic institutions that can be reconciled with Islam. It is important to coordinate effectively with local leaders and to empower then to effectively execute law en-forcement and counterterrorism operations. In so doing, the U.S. must always be culturally sensitive and understand the unique traditions and complexities of each country. As Daxner points out, “enormous damage can be done by seemingly minimal acts of negligence or con-descension” [2]. By respecting local popula-tions and treating them as partners, the U.S. can make local populations personally invested in defeating terrorism within their borders. When it is necessary to engage terrorists militar-ily, the U.S. should focus on surgical strikes and spe-cific counter-terrorist operations. The biggest risk in the War on Terror is radicalizing moderates. In-discriminate use of force that results in civilian casu-alties and/or infrastructure damage is likely to shift civilian support away from the U.S. and toward the terrorists, which civilians might see as “the lesser of two evils.” This has happened in Afghanistan where U.S./NATO attacks have inadvertently led to civilian deaths. The U.S. cannot afford to take the risk of further alienating moderates. The U.S. must also consider negotiating with powerful terrorist organizations. The Taliban, for example, has become so entrenched throughout Afghanistan that it is unlikely that the U.S. will ever fully eliminate it. Of course there will be some au-dience costs of negotiating, but most U.S. citizens and the international community realize that the best option at this point might be containment. Fur-thermore, the U.S. must recognize democratically elected governments that it disagrees with, such as Hamas in Iran, and engage in diplomacy with them as well. There may be some costs to negotiating but there are also costs to prolonging a war that it may be impossible to “win.” Though terrorists have attempted to turn the War on Terror into a religious conflict, its roots are almost entirely non-religious. For this reason, it is important that the U.S. keeps the war from becoming religious by respecting the integrity of civilians, focusing on discriminating counterattacks, and employing diplo-macy. With the international community focused on the Middle East, the U.S has the opportunity to

emerge as a world leader by fighting terrorism in the region, but that all depends on it employing the right counterterrorism strategy now.

Notes: 1. This list was compiled from Burke and Fiske.2. The latest failed mission was a NATO air raid on February 22, 2010 that killed 27 innocent civilians [4].3. “Audience costs” refer to the repercussions to a country of promising one outcome to its domestic population and then changing strategy to achieve a less extreme outcome. In this case, President Bush promised complete and total victory over terrorists worldwide.

[1] Burke, Jason. Al-Qaeda: Casting a Shadow of Terror. London: I.B. Tauris, 2003. Print.

[2] Daxner, Michael. “Afghanistan: Graveyard of Good Intent.” World Policy Journal (2009): 13-23. Print.

[3] Dobrot, Laurence A. The Global War on Terrorism: A Religious War? Publication. Strategic Studies Institute, Nov. 2007. Web. 17 Apr. 2010. <http://www.StrategicStudiesInstitute.army.mil/>.

[4] Fisk, Robert. The Great War for Civilisation: the Conquest of the Middle East. New York: Alfred A. Knopf, 2005. Print.

[5] Motevalli, Golnar. “NATO Airstrike Kills 27 Civilians in Afghanistan | Reuters.” Reuters.com. Reuters, 22 Feb. 2010. Web. 18 Apr. 2010. <http://www.reuters.com/article/idUSTRE61L1XJ20100222>.

[6] National Strategy for Combating Terrorism. Washington, D.C.: National Security Council, 2006. Print.

Looking Beyond the Qu’ran

Images from the War on Terror [Source: Wikimedia Commons]
