The Best Way to Try Terrorists: Federal Court? Security Court?
What’s the best way to try terrorists? Should they be tried in the federal courts? Or should we create a (national) security court? Or? ~P.E.R.
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November 13, 2009, 7:33 pm / New York Times / By the editors
Left to right: Associated Press, Reuters, Associated Press/Sherburne County, Minn., Sheriff’s Office Other federal-court terrorism prosecutions include, left to right, Omar Abdel-Rahman, Ramzi Yousef and Zacarias Moussaoui.Attorney General Eric Holder announced Friday that Khalid Shaikh Mohammed and four other men accused in the 9/11 terrorist attacks will be prosecuted in federal court in New York City. Abd al-Rahim al-Nashiri, who is accused of planning the 2000 bombing of the Navy destroyer Cole in Yemen, and four other detainees also being held in Guantánamo Bay, Cuba, will be tried before a military commission.
Is federal court the right place to try these cases or is there a better way to prosecute them?
James J. Benjamin Jr., a former federal prosecutor, and Glenn Sulmasy, an expert in national security law, are debating this question today in Room for Debate.
Go here to read Round 1 of the debate.
Go here to read Round 2, where Mr. Benjamin responds to Mr. Sulmasy’s position.
Go here to read Round 3 for Mr. Sulmasy’s reply to Mr. Benjamin.
Round 1
Federal Court is the Right Place
James J. Benjamin Jr., a former federal prosecutor, is a partner in the law firm of Akin Gump Strauss Hauer & Feld.
Despite claims by opponents of civilian trials that a military commission is more appropriate for 9/11 terrorist prosecutions, I believe the Southern District of New York is up to the task.
Experience shows that federal courts can handle classified information in terrorism cases.
I recently co-authored a study of the experience of federal courts in adjudicating terrorism cases. The data we collected shows that federal-court terrorism prosecutions have generally yielded just, reliable outcomes that have not undermined our national security.
The list of convictions includes not only the trial of Omar Abdel Rahman in 1995, but also of Ramzi Yousef, Zacarias Moussaoui, Jose Padilla, John Walker Lindh and Richard Reid, to name just a few. Not all cases have been perfect, but the outcomes, by and large, have been accepted around the world and have consigned the convicted terrorists to spend many decades or the rest of their lives in the obscurity of federal prison.
In the years since 9/11 the Justice Department has brought 119 federal court terrorism cases against 289 defendants, with a conviction rate of 91.1 percent. Although it would be naive to suggest that the 9/11 prosecutions will be simple or straightforward, there is good reason to believe that dedicated federal judges, working with prosecutors and defense counsels, can address and overcome the challenges that these prosecutions are certain to present.
Observers like former Attorney General Michael Mukasey have argued that the federal courts cannot be trusted to safeguard sensitive evidence, citing the delivery to Osama bin Laden of a co-conspirator list that had been provided to the defense counsel in the Rahman trial in the mid-1990s. This episode, however, does not support a broad assertion that the courts cannot protect classified information.
The record of the Rahman case indicates that the government did not seek to protect the co-conspirator list through a protective order or through the Classified Information Procedures Act. In fact, in our study, we found no examples of serious security breaches in cases where the act was invoked.
If there were an intractable problem with classified information in terrorism cases, one would expect to have stronger examples than one from almost 15 years ago where, based on the public record, the government did not seek a court order restricting the information.
Judge Mukasey has also cautioned about the risk of incarcerated defendants proselytizing in federal prison, but the Bureau of Prisons has a system of restrictive security measures for defendants who present special dangers. Prisoners who are subject to these measures are denied virtually all contact with the outside world and other prisoners.
Violent terrorists clearly present a serious security challenge, but our justice system regularly handles the most violent members of society. It seems speculative at best to assert that terrorists, as a group, present a markedly greater security challenge for our prison system than murderers or hardened gang members, especially if the government acts wisely in designating prisoners to appropriate facilities.
None of this is meant to say that federal court prosecutions are, by themselves, “the answer” to the problem of terrorism. Obviously not. As the 1990s taught us, an effective counterterrorism strategy must encompass vigorous military force, smart and tenacious intelligence gathering, and diplomatic efforts.
But a sound counterterrorism strategy must also include a reliable, stable system for prosecuting accused terrorists when such prosecutions are appropriate in light of the evidence and the law. Based on the experience of the last 20 years, we should have confidence that federal courts are capable of playing a primary and not just a supporting role in those prosecutions.
Create a Security Court
Glenn Sulmasy, an expert in national security law, is the author of “The National Security Court System: A Natural Evolution of Justice in an Age of Terror.”
The decision announced today that five of the alleged 9/11 planners will be tried in federal court in New York City has already created great debate in legal and policy circles around the world. Without question, the administration inherited the unenviable task of how best to close Guantanamo Bay detention facility while still bringing the Qaeda fighters to justice. Congress’s rejection of providing funding for the closure of the facility only further complicated an already complex situation.
Since we are fighting hybrid warriors in a hybrid war, we need a hybrid court.
The proposal to try the Qaeda fighters in traditional federal courts is surprising and can be, in some regards, problematic. The alleged illegal belligerents will now have the same panoply of constitutional protections as U.S. citizens during their trials. Additionally, just as the military commissions have never achieved their intended goals, often appeared to lack legitimacy and were not the appropriate venue for trying detainees, it is likely that the use of civilian courts will now also be trying to jam a square peg in a round hole.
In rejecting the use of military commissions, and closing the detention facility, we need to be careful to not let the pendulum swing too far in the other direction.
In this armed conflict against Al Qaeda, we find ourselves confronting novel circumstances. The Qaeda fighter is a hybrid — a mix of international criminal and warrior. The conflict we are engaging in is a hybrid — a mix of law enforcement and warfare. Since we are fighting hybrid warriors in a hybrid war, it seems logical that policy makers strongly consider the creation of a hybrid court: a national security court.
There have been many observers, on both sides of the aisle, advocating for just such a solution to bringing the alleged Al Qaeda fighters to justice. In creating such a court, the nation would truly move forward from the debates of the past and embrace a new system that would not unnecessarily taint our two existing forms of justice: the military justice system and our own civilian criminal justice system.
By taking the time to establish a national security court system over the next few months, policy makers would be able to logically and pragmatically best achieve the delicate balance of providing for our nation’s security while still upholding our longstanding commitment to the promotion of human rights.
Round 2
Work With What You Have
James J. Benjamin Jr., a former federal prosecutor, is a partner in the law firm of Akin Gump Strauss Hauer & Feld.
One of the great strengths of the federal courts as a venue for prosecuting terrorists is that they have actually worked, as evidenced by the long list of successful terrorism prosecutions over the past 20 years.
By contrast, proposals to create a new national security court raise practical and legal questions and offer, for the foreseeable future, the prospect of constitutional uncertainty and legal wrangling. The prior administration tried and failed to create novel legal structures to handle terrorism cases.
I believe that a wiser course is to make use of the institutions that we have inherited from prior generations, adapted to modern circumstances to address the challenges presented by terrorism prosecutions.
Round 3
An Opportunity to Embrace Change
Glenn Sulmasy, an expert in national security law, is the author of “The National Security Court System: A Natural Evolution of Justice in an Age of Terror.”
The reality remains that an opportunity exists now to create a system best suited for the unique status of al Qaeda fighters — not just for those at Gitmo — but for those in Bagram and the inevitable captures in the future of this generational war.
Since it now appears that the closure will not occur by January 2010, the political branches should work together throughout the spring to create a true jurisprudential structure to detain, interview and try Al Qaeda fighters. The national security court system, a presumptively adjudicatory system, as I discuss in my book, offers just such an opportunity for Congress and the administration to properly balance justice, national security and our support for the rule of law.
Under the current regime, Jim, as you and I both know, there exists many opportunities for what you call “legal wrangling” and delays as any defense counsel will zealously represent their client to the best of their abilities. And, as Morris Davis, the former chief prosecutor for the military commissions, noted in a recent op-ed in The Wall Street Journal, the chance for forum shopping between either military commissions or the civilian federal courts will create numerous challenges and delays. We should not simply embrace a quick fix to this terribly complex problem, but instead spend the time and intellectual capital necessary to best meet the needs of the nation. We should not be hesitant, or afraid of change.
As we have strategically (the creation of the Department of Homeland Security and the Director of National Intelligence and the 9/11 report) and tacitly (the surge in Iraq and the bold use of academics, human rights groups and the military to craft a new counterinsurgency strategy) evolved, we should now adapt, morph and create a system to deal with the unique issues associated with these fighters. A national security court system offers just such an opportunity.
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P.E.R. lives out west with a dog named Cheyenne.
Were the shoe on the other foot, why not afford them the same judicial process they would give us. It’s called ” Kangaroo Court”. At least, a governing body we can all agree upon.