So Clinton talked tough. But he did not act tough. Indeed, a review of his years in office shows that each time the president was confronted with a major terrorist attack — the February 26, 1993, bombing of the World Trade Center, the Khobar Towers attack, the August 7, 1998, bombing of U.S. embassies in Kenya and Tanzania, and the October 12, 2000, attack on the USS Cole — Clinton was preoccupied with his own political fortunes to an extent that precluded his giving serious and sustained attention to fighting terrorism.

Rule 1.6 of the American Bar Association's Model Rules of Professional Conduct says "a lawyer may reveal [my emphasis] such information to the extent the lawyer reasonably believes necessary: to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm . . ." That "may reveal" is not mere prose. Other lawyers argued at the time for a mandatory obligation to report, but the ABA made it optional. It is not hard to imagine some lawyers convincing themselves that this "opt out" provision would relieve them of the burden of monitoring the speech or intent of their al Qaeda-related clients in the U.S.

Trials in federal courts have features that make them totally inappropriate for the trial of terrorists. Jurors often respond to emotional appeals, and, in any event, would have good reason to fear for their and their families' safety if they convicted. Criminal trials have been adorned by judges with a full panoply of procedural hurdles that guarantee a trial of many months. Appeals and petitions for habeas corpus can take years, and should the death sentence be given, the ACLU has shown how to delay execution for ten years or more through appeals followed by one habeas corpus petition after another.