Terrorism the Trials Afforded Convention

TERRORISM

The trials afforded convention criminals and terrorists are reported as being quite different. This work in writing will detail the differences between the two. It is held by many that the government lacks the consistent methods needed for prosecution of terrorists as the government appears to have no specific method for deciding which terrorists will be tried in federal court or alternatively be tried by military tribunals.

Federal Courts vs. Military Tribunals

The federal courts in the United States and the U.S. military tribunals in their prosecution of suspected terrorists are sharply varied in "their independence, public stature and use of evidence." (USA Today, 2009) Furthermore, it is reported that the present administration while stating that such suspects may be tried in either of these systems and others who will not be tried due to a lack in evidence will be held without a trial because they are "considered too dangerous to release." (USA Today, 2009) Stated as the primary differences in the U.S.A. Today 2009 report between the military tribunals and the U.S. federal courts are "the federal judiciary's independence, rooted in the Constitution and lifetime appointment of judges, and the relaxed rules for admitting evidence in military tribunals."

II. Use of Evidence

While evidence obtained through use of coercive tactics and torture is forbidden for use in federal courts and while a new law signed by President Obama in October 2009 makes use of evidence gained from torture forbidden there are still rules that allow the commissions to make use of hearsay testimony and in some cases coerced testimony. The work of Turner and Schulhofer (2005) entitled: "The Secrecy Problems in Terrorism Trials" published by the Liberty & National Security Project for the Brennan Center for Justice and NYU School of Law reports that the debate thus far "has oscillated between two poles. The chief objection to prosecuting accused terrorist in federal courts has been that the defendant's rights, in that forum -- to confront the evidence against him, to obtain evidence in his favor and to be tried in a public proceeding -- jeopardize secret information vital to counter-terrorism efforts. The chief objection to the new military commissions in turn, has been that secret and unrebutted evidence will play a major part in the process, unfairly depriving the defendant of the means to defend himself and opening the door to error and executive abuse." (Turner and Schulhofer, 2005)

III. Analysis

Turner and Schulhofer (2005) report that five points that were gained from their analysis of this issue include the following: (1) proponents of military commissions often dramatically overstate the difficulty of prosecuting terrorism suspects in federal court; (2) In cases involving foreign nationals captured abroad, logistical considerations may justify the use of court-martials as a trial forum. But in such circumstances, court-martial procedures need not and should not deviate significantly from those of the federal courts; (3) the new military commission is untenable and should be abandoned; (4) there is a need for a new system to be designed however the creation of acceptable tribunals outside the existing judicial and court-martial system would be costly, time-consuming and unlikely to provide significantly better protection for our secrets; and (5) three areas require the provision of Congress in terms of detailed statutory guidance: (a) clarification of the standards and procedures for determining when the defendant can be excluded from full personal participation in the discovery process; (b) rules for determining when the general public can be excluded from discrete, especially sensitive portions of the trail; and (c) take steps to ensure that defense counsel can obtain sufficient security clearance to serve in terrorism cases, by clarifying the process for approving clearances for counsel and creating within the federal defender service a permanent corps of pre-cleared counsel available for appointment where needed. (Turner and Schulhofer, 2005)

IV. Proposed Remedy