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.

The US criminal justice system is up to the task of detaining, placing on trial, and punishing suspected international terrorists, according to a report released on Wednesday.

With preparations under way for military commission trials to begin in July at Guantánamo Bay, Cuba, the advocacy group Human Rights First has published an analysis of 107 terrorism cases prosecuted in American courts since the 9/11 attacks.

The authors, both former federal prosecutors, say an examination of US terror cases reveals that existing structures and institutions in the federal justice system are robust and flexible enough to detain and prosecute most terror suspects.

Lawyers Richard Zabel and James Benjamin say that existing courts enjoy many advantages over the untested military commission process at Guantánamo or the proposed creation of a special national security court in the US.

"In general, the criminal justice system has done a good job in handling terrorism cases," Mr. Benjamin said at a press conference. "It has produced reliable results without causing security breaches or other problems for national security."

The report emerges amid growing calls to close the Guantánamo terror prison camp and with the US Supreme Court expected to rule by late June on the legal rights of terror suspects there.

Officials at Human Rights First say the report is intended to spark wider debate over potential alternatives to military commissions.

The report's authors stress that they are not suggesting complete reliance on US courts to wage the war on terror. "The criminal justice system by itself can't be the only answer," Benjamin says.

But the two former prosecutors said that their research showed that the justice system is strong and flexible enough to handle many cases that some thought could never be tried in open court.

"The system has grown and adapted to handle cases that years ago it couldn't handle," says Mr. Zabel.

"In our view, before any dramatic changes are imposed ... it is important to take a step back and evaluate the capability of the existing federal courts and the existing body of federal law to handle criminal cases arising from international terrorism," Zabel and Benjamin write in their 171-page report.

More than 250 defendants were named in the 107 post-9/11 cases examined by Zabel and Benjamin. Of those, 145 either pleaded guilty or were convicted at trial. Fifteen defendants were acquitted.

The report notes that five defendants have been sentenced to life in prison, including confessed Al Qaeda member Zacarias Moussaoui and confessed shoe bomber Richard Reid. The average prison sentence for the remaining convicted defendants is more than eight years.

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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