AIDP Blog

THE CURRENT SYSTEM IS EQUIPPED TO TRY TERRORISM CASES

Terrorism cases should be litigated in US courts. It is well within the means of U.S. federal courts to give each terror suspect a trial in accordance with international fair trial standards, using the same procedural guarantees afforded to all criminal suspects under United States law. The establishment of domestic terror courts is unnecessary. Since the 1990s, terrorism cases have been tried in federal courts and the delicate balance of protecting national security interests while simultaneously respecting civil liberties has been achieved in those prosecutions. Creating a new national security court would entail a lengthy process of agreeing on the applicable law and the procedures to be used and would no doubt face the same intense dissension that beset the military commissions at Guantanamo, in addition to heated debates regarding its expense.

This response criticizes two assertions found in the Guiora/Barr editorial in the Salt Lake Tribune: (i) that, following an objective assessment, detainees who pose a threat will be tried in a newly-created domestic terrorism court; and (ii) that detainees cannot be accorded the right to confront accusers due to national security concerns. My criticism of the proposal is based upon the conclusions of a report entitled, “In Pursuit of Justice” released in May 2008 by Human Rights First, an international human rights organization. The report, prepared by pro-bono counsel, Richard Zabel and James Benjamin, partners of the well-regarded law firm Akin Gump, studied approximately 123 Islamic extremist terrorist cases tried in U.S. courts in the 1990s, including all 107 post-September 11 trials. That report indicates that the overwhelming majority of those cases resulted in a conviction on at least one charge. More importantly, the report concluded that federal courts have consistently shown the capacity to try terror cases while taking into consideration national security concerns thanks, in no small part, to legislation such as the Classified Information Protection Act (“CIPA”) and the Foreign Intelligent Surveillance Act (“FISA”) to ensure the integrity of national security secrets.

The editorial argues that the United States must determine which detainees actually pose a threat and release the remaining individuals. I would posit that it is far too late for such an exercise. Indeed, by holding these individuals for so long without a right to habeas corpus, the US government has operated on the assumption that the individuals pose a threat, thus violating the presumption of their innocence until proven guilty by an independent and impartial judicial body. Therefore, it is imperative that a judge rule on all of the circumstances of their detention rather than subject the detainees to another triage resulting in a release without the benefit of a legal record upon which those individuals (against whom no proceedings are commenced) might rely on in an action for civil damages. In addition, because the safety of any released detainees is at issue, a federal judge should rule as to whether his or her return or transfer to another country meets international standards – that is, that detainees should not be transferred to jurisdictions where they will likely face torture or violations of other fundamental freedoms.

Regarding information that could compromise national security interests, the report notes that CIPA and FISA have provided adequate protection. Consider the following solution used by the court in the Embassy Bombings case (page 87):
the government offered the testimony of L’Houssaine Kherchtou, a former al Qaeda member…..Prior to Kherchtou becoming a cooperating witness, he had been questioned by a foreign intelligence service for five days concerning his knowledge of al Qaeda. That questioning was taped, provided to the United States, and contained information relevant to the case, but the foreign intelligence service insisted that its involvement not be disclosed. CIPA effectively resolved the issue: in discovery, a transcript of the debriefing was provided to defense counsel with references to the foreign intelligence service blacked out; at trial, defense counsel’s questioning of Kherchtou on the witness stand was monitored to ensure that the foreign intelligence service was not identified.

Fifteen years of jurisprudence proves that U.S. courts have adequately addressed cases involving international terrorism, even where national security interests have been at stake. A new domestic terrorism court is not necessary or desirable. Furthermore, it is possible to conduct such trials by affording the same constitutional rights guaranteed defendants in domestic criminal trials. A similar conclusion was more eloquently communicated by Kenneth Roth, the executive director of Human Rights Watch, another respected human rights advocacy group. In an article in the May/June edition of Foreign Affairs magazine, Roth states, “Before discarding the U.S. criminal justice system, policymakers should keep in mind the old adage ‘If it ain’t broke, don’t fix it.’ The terrorist threat will undoubtedly challenge the criminal justice system, but the system’s track record, the quality of its personnel, and its time-tested procedures make it an infinitely better option….”