Debate: Where Should Alleged Terrorists Be Prosecuted?

Debater 3

Pro Civilian Courts
by Arthur C. Helton

Where to prosecute alleged terrorists has become an issue in America's response to the terrorist attacks on September 11, 2001. This is due largely to President Bush's controversial November 2001 Executive Order permitting the government to prosecute foreigners accused of terrorism before special military tribunals. Attorney General John Ashcroft sought to justify this innovation when he expressed a concern about placing terrorists on trial in the United States, saying "Are we supposed to read [alleged terrorists] their Miranda rights, hire a flamboyant defense lawyer, bring them back to the U.S. to create a new cable network of Osama TV or what have you?" But our federal courts are well-suited to prosecute terrorists, especially non-U.S. citizens apprehended and incarcerated here.

When we speak of civilian courts, we are referring mainly to the judicial branch of our federal government, which was established by Article 3 of the U.S. Constitution. The first Judiciary Act of 1789 authorized the establishment of a system of federal courts, which hear and decide criminal and civil cases. The federal court system currently has more than 2,000 judges who work at nearly 800 locations throughout the United States. There are thirteen judicial circuits, each with a court of appeals, along with ninety-four U.S. district courts located throughout the fifty states as well as in Puerto Rico, the Virgin Islands, the District of Columbia, Guam, and the Northern Mariana Islands. Federal court judges are appointed for life by the president, subject to the advice and consent of the U.S. Senate.

Those who commit terrorist attacks can be charged with many different federal crimes and prosecuted in the federal courts. These include engaging in acts of international terrorism, providing material support to terrorists, violating various passport and visa regulations in aid of terrorism, and committing crimes involving aircraft. Conspiring or aiding in the commission of such offenses is also subject to prosecution. These crimes carry lengthy sentences, including life in prison. In certain circumstances, such as when murder is committed in a federal building, the death penalty may be imposed. Similar offenses have been part of U.S. law since the Alien and Sedition Acts of 1798, and they were prosecuted for many years prior to September 11.

Murder charges can also be prosecuted in state courts. For example, in New York and Virginia, where the September 11 attacks occurred, murder charges could carry the death penalty. However, since most terrorist acts violate federal law and federal authorities are ordinarily involved in their investigation, prosecutions occur mainly in the federal courts.

Indeed, terrorists have been prosecuted in the federal courts on many occasions. For example, the individuals involved in the 1993 World Trade Center bombing were tried in federal court. Their jury trial lasted six months, with 204 witnesses and more than 1,000 pieces of evidence presented. The trial resulted in the conviction of four defendants, with each sentenced to serve 240 years in prison and to pay a $250,000 fine. In 1995, Pakistani authorities arrested the prime fugitive wanted in connection with the 1993 bombing, Ramzi Ahmed Yousef, and delivered him to U.S. authorities. He was prosecuted and sentenced to 240 years in prison as well. More recently, in October 2001, four associates of Osama bin Laden were sentenced to two life terms of imprisonment for the bombing in September 1998 of U.S. embassies in Nairobi, Kenya, and Dar-as-Salaam, Tanzania. These individuals were also ordered to pay a total of $33 million to individual victims and to the U.S. government.

With regard to the perpetrators of the September 11 attacks, Osama bin Laden has already been indicted criminally in connection with the 1998 U.S. embassy bombings in Africa. In 2001, a French citizen, Zacarias Moussaoui, was indicted in federal court in Virginia for conspiracy to commit terrorism related to the attacks. Earlier this year, prosecutors announced that they would seek the death penalty for Moussaoui. In January 2002, Richard Reid, the alleged "shoe bomber" and a British citizen, was indicted for a variety of offenses connected with carrying an explosive device onboard an aircraft, and he awaits trial.

Federal court terrorism prosecutions are not limited, of course, to aliens. U.S. citizens can also be tried in federal court, as in the case of Timothy McVeigh, who was sentenced to death for bombing a federal office building in Oklahoma City in 1995, killing 168 people and injuring hundreds more. A co-conspirator, Terry L. Nichols, was sentenced to life in prison for his role in the bombing. John Walker Lindh, the "American Taliban" captured in Afghanistan currently faces federal trial on charges of aiding terrorist organizations and conspiracy to kill Americans. In April 2002, an American-born detainee at the Guantanamo Bay naval base, Yaser Esam Hamdi, was sent to the Norfolk Naval Brig in Virginia and classified as an enemy combatant instead of being criminally charged. In June, Jose Padilla, a former Chicago gang member and U.S. citizen who took the name Abdullah al-Muhajir, and who had reportedly conferred in Pakistan with an al-Qaida operative, was transferred to a military brig in South Carolina without charge.

In terms of remedies, apart from criminal sanctions, federal courts can hear civil lawsuits for money damages brought by victims against states that sponsor terrorism. Several such judgments, for example, have been rendered against Iran, although collecting damage awards has proven difficult. Countries against whom such judgments have been entered do not comply voluntarily. Even where their assets have been seized, U.S. authorities can forbid their use to satisfy judgments on diplomatic grounds.

Procedural rules in the federal courts are designed to guarantee minimum standards of fairness to criminal defendants who must face the awesome resources of a government prosecution and also risk the loss of their liberty and lives. For instance, bail for those incarcerated must be considered, and a speedy trial is required. Habeas corpus review is available to challenge the legality of custody. A grand jury must indict offenders. At trial, the use of secondhand, or hearsay, evidence is limited. Guilt must be established beyond a reasonable doubt. The judge determines questions of law, and where a jury is requested (as is generally the case), a conviction must be supported by a unanimous vote of the jurors. Upon a guilty verdict, the judge imposes a sentence under national guidelines designed to promote consistency of treatment. Appeals may be taken to the U.S. Court of Appeals, and possibly to the Supreme Court.

There are many tools available to meet the challenges of putting terrorists on trial. The federal courts do not permit trials to be televised. In recent years, there has been a dramatic increase in threats against judges, U.S. attorneys, and court officers. The U.S. Marshals Service provides protection in these instances. Also, where necessary, jurors can be protected by being permitted to remain anonymous. A federal witness protection program exists to protect a witness from reprisal from terrorists or others.

Federal trials are open to the public, and defendants have a right under the Constitution to confront and challenge their accusers and the evidence against them. The prospect of disclosing classified evidence can produce dilemmas, such as when the main criminal charges were dismissed against U.S. Marine Lieutenant Colonel Oliver North in the Iran-Contra case in 1991. But special national security mechanisms exist in the Classified Information Procedures Act that are designed to avoid forcing the government to disclose sensitive intelligence information during pretrial discovery or to forego the prosecution of a terrorist. Under these procedures, summaries or portions of documentary evidence can be made available to defendants.

In sum, the Constitution provides ample flexibility to the United States to prosecute, in our federal courts, noncitizen terrorists apprehended and incarcerated here, consistent with the procedural rights of criminal defendants. These terrorists should be tried in our civilian courts.

Arthur C. Helton

ahelton@cfr.org

Arthur C. Helton is the director of Peace and Conflict Studies and senior fellow for Refugee Studies and Preventive Action at the Council on Foreign Relations in New York City. He is the author of The Price of Indifference: Refugees and Humanitarian Action in the New Century. He has also written an article in Foreign Affairs (March/April 2002) that applies his book's ideas to recovery in Afghanistan.

In 1994, Helton founded and then directed the Forced Migration Projects at the Open Society Institute (Soros Foundations), with offices in New York City and Budapest, Hungary. For twelve years prior to that, he directed the Refugee Project at the Lawyers Committee for Human Rights.

Helton teaches a course on refugee law and policy at the Columbia Law School. He has taught courses on migration and forced displacement at the New York University School of Law and at the Central European University (Budapest) in the International Relations and European Studies Program. He has testified on numerous occasions as an expert in the U.S. courts and in Congress on issues concerning the rights of aliens and refugee protection. He co-authored Forced Displacement and Human Security in the Former Soviet Union: Law and Policy, and he has written over eighty scholarly articles on refugee and migration subjects. He is a member of more than thirty organizational boards in the field.

In 2002, Helton received the Award for Distinction in International Law and Affairs of the New York State Bar Association and, in 2001, the Immigration and Refugee Policy Award of the Center for Migration Studies. Among other awards, in 1991 he earned the Ninoy Aquino Refugee Recognition Award conferred by the president of the Republic of the Philippines and, in 1987, the Public Interest Award conferred by the NYU Law Alumni Association. Helton graduated from Columbia College in New York City in 1971 and from the NYU Law School in 1976.