U.S. courts best venue to try terror cases, study says

The analysis of 107 cases after 9/11 adds fuel to the debate over whether military tribunals are needed.

from the May 29, 2008 edition

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Federal judges were faced with the challenge of conducting a fair trial against concerns that disclosures in open court might harm national security. The report says that many trials have been conducted with the aid of the Classified Information Procedures Act. The law establishes a mechanism to allow a judge to assess the importance of sensitive evidence before it is disclosed in open court and, if necessary, create a nonclassified substitute for use at trial.

"We found there is not a single documented example of a security breach where CIPA has been invoked," Benjamin says.

He said their research revealed the falsity of an often repeated anecdote that an open-court disclosure in a terrorism trial tipped off Osama bin Laden that US intelligence was monitoring his satellite phone. "That simply didn't happen," Benjamin says.

Bin Laden's satellite phone was long silent by the time the evidence was presented at trial, he says.

Detention is another thorny issue prompting debate. US civilian authorities have relied on three methods to detain terror suspects. They have filed criminal charges against them, detained them based on immigration law violations, or obtained material witness warrants to hold them behind bars to secure their testimony before a grand jury. In addition, the US military has detained terror suspects as enemy combatants.

"Each of these procedures has at times been put to widespread use in the years since 9/11," the report says. "Together, these various tools have given the government the authority to detain the overwhelming majority of individuals whom it has arrested in connection with terrorism."

In most cases, law enforcement officials were able to successfully handle terrorism suspects. But in two cases – involving Jose Padilla and Ali Saleh al-Marri – the government shunned the existing justice system and instead relied on "novel and potentially far-reaching theories of military detention," the report says.

Both men were ordered held without charge in prolonged detention in a military brig in the US. Mr. Marri is still at the brig, and a legal challenge to his continued detention as an enemy combatant is pending at the Fourth Circuit Court of Appeals. Mr. Padilla was eventually transferred to the civilian justice system and was convicted of participating in a terror conspiracy. He is serving a 17-year prison sentence in the maximum security wing of the federal prison at Florence, Colo.

Zabel and Benjamin say in their report that one lesson of the Padilla and Marri cases is that the attempt to hold US-arrested persons as enemy combatants may not have provided significant benefits to the government.

"The effort to keep a terrorist suspect beyond the reach of the justice system can consume even more time and resources than are consumed by dealing with him through normal criminal channels," the report says.

"The existing criminal justice system is an established institution that has generally done a good job in handling international terrorism cases," the report concludes. "It has become common, these days, for observers to point out the actual and perceived flaws in the criminal justice system and to argue that a new system should be created from scratch to handle international terrorism cases."

The report adds: "Based on our research, however, we believe that the justice system generally deserves credit for the manner in which it has handled terrorism cases."

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