Constitutional Law

Taking Stock of the Federal Courts' Fitness to Prosecute Terrorism Cases

by Gabor Rona, International Legal Director, Human Rights First

Ever since the first detainees began arriving at Guantánamo Bay in 2002, there has been debate about the proper legal framework for detention and trial of suspected terrorists.  Critics of prosecution using the existing civilian criminal justice system have written in support of a variety of alternative approaches: continued use of the Guantánamo Military Commissions, creation of a new “national security court” for terrorism prosecutions, and a new regime of “administrative detention” without charges or trials.

The issue of how to handle terrorism suspects is expected to take on increasing significance as part of a larger debate over the future of the Guantánamo detention system and in the aftermath of the Supreme Court’s ruling in Boumediene v. Bush, a Guantánamo case on which the Supreme Court is expected to rule this month.

Over a year ago, we at Human Rights First noted the absence of any comprehensive study of the criminal justice system’s experience with international terrorism cases. Believing that one need not “fix what ain’t broke,” we decided to conduct such a study in order to determine whether or not repairs, let alone alternatives, are indeed needed. 

“In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts,” a Human Rights First report written by Akin Gump Strauss Hauer & Feld LLP partners Richard B. Zabel and James J. Benjamin, Jr., constitutes the most thorough examination to date of federal terrorism cases against those who are “associated—organizationally, financially, or ideologically—with Islamist extremist terrorist groups like al Qaeda.” The report is based heavily on a newly compiled, comprehensive database of federal terrorism prosecutions and relevant federal laws.

In Pursuit of Justice examines more than 120 international terrorism cases prosecuted in the existing criminal justice system over the past 15 years, ranging from epic mega-trials such as those involving the first attack on the World Trade Center (1993) and the East African embassy bombings (1998) to individual, pre-emptive prosecutions focused on prevention.

The Report is based on a close review of motion papers, docket sheets, judicial opinions and press accounts, as well as interviews with prosecutors, defense lawyers and judges with firsthand terrorism litigation experience. It examines pre-trial detention procedures, rules for protecting classified evidence, the government’s discovery obligations, the authentication and admissibility of evidence collected abroad and other aspects of the federal system that critics have suggested are ill-suited to prosecuting terrorist suspects.

Using case-specific examples, the Report finds that existing laws cover a broad spectrum of terrorism-related crimes and, in the vast majority of known cases, provide an effective basis for detaining, monitoring, and prosecuting suspects. The Report also finds that federal courts have proven to be highly adaptive and flexible in delivering justice in complex terrorism cases, casting doubt on the necessity of the competing mechanisms proposed to supplant them since 9-11.

The Report focuses not only on legal issues addressed in court decisions and federal statutes, but also on practical issues that confront courts and law enforcement agencies. In Pursuit of Justice explains how federal criminal courts balance defendants’ rights to review the government’s evidence with the need to protect sensitive national security information—a challenge that continues to face the military commissions at Guantanamo. The Report also discusses how the rules of admissibility and authentication are applied in a common-sense manner to evidence collected abroad.

Among the key findings of the Report:

• Prosecutors have invoked a host of specially tailored anti-terrorism laws, as well as long-standing, generally applicable federal criminal statutes, to obtain convictions in terrorism cases. These laws enable law enforcement to intercept plots in the making and prosecute individuals well before any terrorist attack is completed.
• Courts have consistently exercised jurisdiction over defendants brought before them, even those defendants apprehended by unconventional or forcible means.
• Applying statutes such as the Foreign Intelligence Surveillance Act (FISA) and the Classified Information Procedures Act (CIPA), courts have successfully balanced the need to protect national security information, including the sources and means of intelligence gathering, with defendants’ fair trial rights.
• Courts have devised creative approaches to balancing a defendant’s right to receive exculpatory information and other relevant discovery with the need to protect national security information.
• The Federal Rules of Evidence, including rules that govern the authentication of evidence collected abroad, provide a common-sense, flexible framework for guiding admissibility decisions.

The Guantánamo military commissions, in which not a single case has yet come to trial, have failed to deliver either accountability for terrorist crimes or fair treatment of the accused. That experience should act as a stern warning of the risks inherent in creating new, ad hoc systems and procedures--such as a special terrorism court or administrative detention without trial--that depart in critical respects from American and international standards of justice.

In contrast to the military commissions and administrative detention at Guantánamo, the existing criminal justice system has a solid track record of bringing terrorists to justice through procedures that are fair, and are seen to be fair, while protecting vital national security interests.

The civilian criminal justice system is of course not, by itself, “the answer” to the problem of terrorism. Political, economic and educational initiatives; intelligence gathering; diplomacy; interrupting the flow of terrorism financing; and military solutions--including detention under the law of war and prosecutions within the military justice system--are, at various times, all a part of the equation. But where detention and prosecution are at issue, there is ample evidence that the existing criminal justice system is well suited to doing justice while protecting national security, while the alternatives carry a significant risk of delivering neither.

Full post as published by ACS Blog on June 03, 2008 (boomark / email).