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Background of Terrorist Trials in the United States
Terrorism occupies a unique liminal position, somewhere between acts of war and criminal acts. Because of this, jurisdiction, the rights of terrorist suspects, and other ethical and legal conundrums have lent themselves to an inconsistent and ambiguous terrorist trial system in the United States. Historically, as now, terrorist trials in the United States have taken place in several different jurisdictions, and prosecutorial discretion can be based on factors like circumstantial and situational variables or on political whim. Whether or not the terrorist incident was allegedly perpetrated by a domestic or an international group may also have a bearing on how a terrorist trial is conducted. Some terrorist trials have taken place in civilian courts and others in military courts, neither of which seem ideally suited to address the complex issues associated with terrorism.
Since September 11, the federal government expanded its own powers to detail terrorist suspects indefinitely without a trial, overriding Constitutional law. One of the reasons why terrorist trials are so inconsistent and ambiguous is because of disagreements over the efficacy, ethics, legality, and desirability of the power to refuse suspects the rights otherwise bestowed upon the accused. As Bennett & Litt (2009) point out, “the government’s legal, practical and moral authority to detain suspected terrorists without trial remains a subject of fierce debate,” (p.1). The fact that many terrorist suspects are not American citizens has facilitated the federal government’s ability to detain suspects indefinitely without a trial, ostensibly for “preventative” purposes proclaiming national security (Bennett & Litt, 2009, p. 1). However, Constitutional law is generally interpreted in ways that extend protections like Miranda rights to non-citizens of the United States (“Myth v. Fact: Trying Terror Suspects in Federal Courts,” 2018). Likewise, the United States has maintained offshore detention facilities, most notably the one at Guantanamo Bay, in order to conveniently and credibly circumvent the pesky legal constraints that would otherwise apply if detention centers sat more squarely on American soil even though technically such offshore locations count as American soil.
Where Should Terrorist Suspects Be Tried?
Currently, there is no single standard by which terrorist suspects are tried and prosecuted. Terrorist suspects can be processed through a civilian federal court system, or through the military court system involving a tribunal. Even within this bifurcated system, terrorist trials have tremendous heterogeneity. For example, four terrorist trials involving suspects from the same 2014 Benghazi attack took place in four separate federal courthouses (Greenberg, 2017). Because federal prosecutors can also keep much of the information related to the terrorist trials, including subsequent court records, classified due to national security, there is often little in the way of oversight or even “notice” for the general public—raising questions about government transparency in the two-court system, even when the civilian courts are being used (Greenberg, 2017, p. 1). Military tribunals are substantially different from civilian courts, in terms of procedure and also in terms of political philosophy; unlike civilian trials they can take place behind closed doors, barring access to the Fifth Estate. Therefore, when considering where terrorist suspects should be tried, the answer rests with clarifying what the intended goals of the trial are: to err on the side of caution even if it means convicting the innocent and overriding the principles of human rights; or to err on the side of human rights even if it means risking the release of a terrorist.
Pros cons of each tribunal
Generally, those in favor of military tribunals for terrorist suspects tend to take a more hard-lined stance towards suspects, an approach that is more akin to “guilty until proven innocent,” than the opposite. The pros offered in favor of military tribunals include their intent to safeguard national security by preventing any suspect from being able to take advantage of a legal loophole or problem with procedural justice that might lead to an acquittal of those who had actually committed terrorist acts and would do so again. Military tribunals also afford terrorism itself the status of a war crime as opposed to being classified as a criminal act. Where the terrorist suspect is tried has a direct impact on judicial proceedings at every stage of the process from apprehension and detention to prosecution and sentencing. The suspect in a military tribunal also has fewer legal rights than if that suspect were to be tried in a civilian court, which skews the judicial process in favor of the prosecution. The military tribunal approach has enabled the indefinite detention of terrorist suspects at Guantanamo (Greenberg, 2017). Ironically, though, the numbers do not reflect the presumed superiority of military tribunals to convict terrorist suspects. While only eight terrorist suspects have been convicted in military trials, almost seven hundred have been convicted in federal civilian courts (“Myth v. Fact: Trying Terror Suspects in Federal Courts,” 2018).
Moreover, the convictions yielded in military tribunals are not as immutable as they may seem, with three of the aforementioned eight convictions having already been overturned (“Myth v. Fact: Trying Terror Suspects in Federal Courts,” 2018). Military tribunals offer some benefits in terms of procedure, but not necessarily provide for the safety of the general public given the relatively low rate of conviction. On the other hand, the lower conviction rate in military tribunals could paradoxically imply that suspects indeed receive trials that are as fair, if not fairer, than their counterparts in the civilian sector. Given that civilian criminal trials will involve a jury as well as judge, powerful emotions and public opinion factors into the verdict and sentencing options in civilian trials even more so than in a military one that does not include a jury. Another major drawback with military tribunals is that they preclude the ability for the prosecution to try suspects for ancillary crimes that might yield a conviction that at least helps protect public safety. For example, a military tribunal has no jurisdiction over cases involving charges such as financial support for terrorism or fraud (“Myth v. Fact: Trying Terror Suspects in Federal Courts,” 2018). Military tribunals have also been accused of sending the wrong message to the American public regarding the status of terrorism and of terrorists. For instance, being tried in a military court makes terrorists seem more like “warriors” than like general criminals, which psychologically diminishes the status of both the individuals involved and the crimes they commit (“Myth v. Fact: Trying Terror Suspects in Federal Courts,” 2018, p. 1).
Civilian courts are frequently favored out of human rights principles and perspectives, but they also do offer some practical benefits that are sometimes glossed over or lost in the fray of antagonistic political discourse. Trying terrorist suspects in federal civilian courts does seem to comply better with international law standards and also Constitutional law. For years, in fact, the American Department of Justice has “worked to ensure that terrorism suspects wind up in federal court and not in military commissions, and certainly not in indefinite detention without facing charge or trial,” (Greenberg, 2017, p. 1). Yet even when the federal civilian court system is used to try terrorist suspects, federal prosecutors are given substantially greater leeway to use legal loopholes in judicial procedure. Greenberg (2017) points out that judges in federal terrorist trials have allowed the admission of certain types of evidence—such as that yielded from unlawful surveillance—that would not have been permitted in a standard criminal case (p. 1). Federal civilian court trials do not necessarily equate with justice, just as military tribunals do not amount to miscarriages of justice. Contrary to popular belief also, federal civilian court trials allow for the protection of classified data that could be revealed more openly in the closed system of the military tribunal (“Myth v. Fact: Trying Terror Suspects in Federal Courts,” 2018). However, civilian courts do offer the opportunity to suppress or disallow evidence that was extracted in illegal ways: including confessions made under duress, coercion, or torture (“Myth v. Fact: Trying Terror Suspects in Federal Courts,” 2018).
Conclusion
There are no easy answers to the question of how to best try terrorist suspects in the United States. Answers also depend on definitions of terrorism: whether terrorism is classified legally as a crime or as an act of war. Similarly, answers to how terrorist suspects should be tried depend on the goals of the judicial system in terrorist cases. If the goals in the terrorist trial are to balance human rights with national security, then it would seem that both military tribunals and civilian courts offer something of value. Civilian courts are perceived of as providing better safeguards for human rights, particularly when it comes to Miranda rights, rights of due process, and rights to a fair and speedy trial. In practice, though, federal laws since September 11 have permitted civilian courts to proceed much differently in terrorist trials, allowing for indefinite detention and for different standards of evidence.
Civilian federal courts offer the potential to prosecute a wider variety of cases, including those that involve the provision of financial support and conspiracy-related charges that might lead to the systematic dismantling of terrorist organizations. Because military tribunals are highly specialized, they cannot provide the broad-based services available in the federal court system. The lack of oversight and transparency in the military tribunal also impedes their credibility and efficacy in achieving long-term goals of counterterrorism policy. When the United States sacrifices core values like due process, it risks sacrificing its very soul. In the interests of preserving the fundamental tenets of liberty and justice, the federal court system is an imperfect but preferable option in terrorist cases.




References

Bennett, W.C. & Litt, R.S. (2009). Better rules for terrorism trials. Brookings Institute. https://www.brookings.edu/research/better-rules-for-terrorism-trials/
Greenberg, K.J. (2017). Prosecuting terrorists in civilian courts sill works. The Atlantic. https://www.theatlantic.com/international/archive/2017/11/isis-trump-terrorist-obama-court-military-guantanamo/546296/
“Myth v. Fact: Trying Terror Suspects in Federal Courts,” (2018). Human Rights First. https://www.humanrightsfirst.org/resource/myth-v-fact-trying-terror-suspects-federal-courts