In Pursuit of Justice

Prosecuting Terrorism Cases in the Federal Courts

As the Obama Administration takes steps to shut down the Guantanamo Bay facility, the heated debate over when and how to prosecute suspected terrorists continues.  Some commentators have asserted that bringing accused terrorists to the United States to face trial and incarceration poses a danger to American communities.  Others have argued for the creation of a new, untested legal regime to preventively detain and/or prosecute persons suspected of complicity in terrorism.  Often missing from this debate is the fact that the federal courts are continuing to build on their proven track record of serving as an effective and fair tool for incapacitating terrorists.

Because of the importance of resolving the question of when and how to try and detain terrorism suspects to our national security, our legal culture, and our standing in the world, we published two reports:

• In Pursuit of Justice:  Prosecuting Terrorism Cases in the Federal Courts (2008)
• and its update In Pursuit of Justice:  Prosecuting Terrorism Cases in the Federal Courts – 2009 Update and Recent Developments.

Together, these reports are the most comprehensive analysis ever undertaken of criminal cases arising from terrorism that is associated—organizationally, financially, or ideologically—with self-described “jihadist” or Islamist extremist groups like al Qaeda.  And we hope these reports will continue to help focus the debate on these important issues.  In total, we have analyzed 119 cases with 289 defendants.  Of the 214 defendants whose cases were resolved as of June 2, 2009 (charges against 75 defendants were still pending) 195 were convicted either by verdict or by a guilty plea.  This is a conviction rate of 91.121%, a slight increase over the 90.625% conviction rate reported in May of 2008.

Our research also found:

• The statutes available to the Department of Justice for the prosecution of suspected terrorists continue to be deployed forcefully, fairly, and with just results.
• Courts are authorizing the detention of terrorism suspects under established criminal and immigration law authority and, now through the time-tested common law system, are delimiting the scope of military detention to meet the demands of the current circumstances.
• The Classified Information Procedures Act (CIPA), although still subject to being improved, is working as it should:  we were unable to identify a single instance in which CIPA was invoked and there was a substantial leak of sensitive information as a result of a terrorism prosecution in federal court.
• The Miranda requirement is not preventing intelligence professionals from interrogating prisoners, and recent court decisions have not interpreted Miranda, even in the context of foreign law enforcement interrogations, as a bar to criminal prosecution.
• Prosecutors are able to make use of a wide array of evidence to establish their cases.
• Convicted terrorists continue to receive stiff sentences.
• The Federal Bureau of Prisons has been detaining accused and convicted hardened terrorists in U.S. prisons on a continuous basis since at least the early 1990’s without harm to the surrounding communities.

In sum, the federal courts, while not perfect, are a fit and flexible resource that should be used along with other government resources—including military force, intelligence gathering, diplomatic initiatives, and cultural and economic strategies—as an important part of a multi-pronged counterterrorism strategy.  In contrast, the creation of a brand new court system or preventive detention scheme from scratch would be expensive, uncertain, and almost certainly controversial.  The analysis of the data from these reports confirm our conclusion that the criminal justice system has been and should continue to be an important tool in confronting terrorism.