Post 9-11 Terrorism Cases Show Federal Courts Bring Terrorists to Justice Without Administrative Detention, Military Commissions

NEW YORK— 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, according to a new Human Rights First report released today.

With this new report, written by two former federal prosecutors, Human Rights First steps squarely to the forefront of the national debate over the fitness of federal courts to handle terrorism cases. The report’s findings undermine the arguments of those who urge invention of new systems, such as a special terrorism court or administrative detention without trial to deal with terrorist suspects. 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 Guantanamo detention system and in the aftermath of the Supreme Court’s ruling in Boumediene v. Bush, a Guantanamo case on which the Supreme Court is expected to rule in the coming weeks.

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 White Paper 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.

“Since 9-11 the ad hoc system created by the United States has failed to complete even one trial and has resolved only one case. By any measure, the current systems of military commissions and administrative detention at Guantanamo have failed when compared with the record of the criminal justice system,” said Michael Posner, president of Human Rights First.

“Whether the criminal justice system can handle the prosecution of terrorism cases is not an abstract or academic question,” said Jim Benjamin. “The answer to this question lies in the extensive record of actual prosecutions going back to the early 1990s and continuing to this day in federal courts around the country.”

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 White Paper also discusses how the rules of admissibility and authentication are applied in a common-sense manner to evidence collected abroad.

“One of the federal court system’s greatest strengths in prosecuting criminal terrorism cases is its inherent adaptability,” said Rich Zabel. “When viewed collectively, these cases demonstrate that the laws and procedures in federal court have evolved to meet the challenges of prosecuting criminal cases arising from the growing and ever-changing threat of international terrorism.”

According to the White Paper, “The evolution of statutes, courtroom procedures, and efforts to balance security issues with the rights of the parties reveals a challenged but flexible justice system.”

Among the key findings of the White Paper are:

  • 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;
  • 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.

Still, critics contend that federal criminal courts are simply not equipped to handle the magnitude and complexity of the threat posed by international terrorism cases. Accordingly, some endorse the aggressive use of the military commission system, with ad hoc rules and procedures that depart in critical respects from American standards of justice, while others propose creating special terrorism courts with similarly modified rules of evidence, secrecy, and security.

In Pursuit of Justice demonstrates that the criminal justice system is capable 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 force (including detention under the law of war and prosecutions within the military justice system) are, at various times, all a part of the equation.

As noted in the White Paper, one significant disadvantage to the creation of a new national security court system distinct from the existing federal court structure would be “the need to create from scratch the procedures, precedents and body of law that would govern such a court. The disarray that plagues the military commissions at Guantanamo—with abundant litigation as well as dissension within the military command structure but not a single completed trial some six years after the presidential order authorizing military commissions—does not bode well for proposals to create a brand new system from scratch.”

Rich Zabel added, “The federal courts have amassed many years of experience and a reservoir of judicial wisdom as well as a broadly experienced bar to navigate the inherent complications posed by the prosecution of international terrorism cases.”

“At stake in the notion of reinventing the wheel, is not just the question of how best to prosecute terrorism cases, but also how to defend the integrity of the American justice system, which would be compromised by the creation of a parallel legal system lacking adequate mechanisms for ensuring fairness and due process,” said HRF’s Michael Posner.


Published on May 28, 2008


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