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Opinion

Why civilian courts are best for terror trials, especially Boston bombing suspect

As more than 1,000 terrorism trials over the last decade show, the federal court system is well equipped to handle terrorism cases like that of Boston bombing suspect Dzhokhar Tsarnaev. His trial may also help harmonize US counterterrorism efforts with those of its allies.

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In choosing to charge Tsarnaev with using a “weapon of mass destruction,” the surviving Boston Marathon bombing suspect falls under an infrequently used, but widely interpreted terrorism statute. Just 25 of all domestic terrorism cases since 2001 have involved a WMD charge. Yet the penalty has been leveled at an infamous group of confirmed and would-be terrorists, including September 11’s “20th hijacker,” Zacarias Moussaoui, shoe bomber Richard Reid, and Najibullah Zazi, the individual who plotted to plant bombs in the New York City subway system. 

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Almost all terrorism trials since 2001, whether of domestic or international defendants, have also ended in convictions. In fact, with a conviction rate of nearly 90 percent, it is almost certain that if Tsarnaev’s case continues to the jury stage, he will be found guilty. That it will reach that point, however, is itself not guaranteed: Some two-thirds of all terrorism cases have ended in guilty plea agreements. While this is lower than the overall percentage of federal cases that end in plea agreements, coupled with the strong case against him, it suggests that the Tsarnaev trial may at least be very short.

The more interesting question in this case is what will become of Tsarnaev after his trial is completed, and what his story might mean for US counterterrorism efforts going forward. Much of the conversation since Tsarnaev was formally charged has questioned whether he will get the death penalty if he is convicted.

Given that America has executed just one convicted terrorist in the last two decades – Timothy McVeigh for the Oklahoma City bombings in 1995 – it is not likely. Indeed, my own research has shown that more than half of all convicted terrorists are sitting in federal prisons in the United States (at last count, there were 400 in total), serving an average sentence of at least 14 years.

Those serving time for the most egregious terrorism crimes are in for life. Among them is the “Blind Sheikh,” Omar Abdel Rahman, who was charged with “seditious conspiracy” after an investigation of the 1993 World Trade Center bombings.

Convicted terrorists in US federal prisons have only severely restricted access to outsiders and outside information, and their activities inside prison walls are under heavy surveillance. They are also barred from significant contact with the general prison population, usually segregated from other inmates and confined to single cell blocks with single guards.

This correctional approach to extremism – one that relies on the criminal justice system – echoes trends across a number of other countries, including Britain, France, Italy, and Russia, and has helped the US to gain and share valuable intelligence about terrorism. Prison officers regularly report and exchange information with global partners about the activities of these inmates.

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