As the U.S. strives for a vigorous response to the problem of radical Islamist terrorism, it seems self-evident that we must have a stable and effective forum for prosecuting accused terrorists when such prosecutions are appropriate in light of the evidence and the law. In a recent study, we found substantial data to support the proposition that the federal courts are capable of handling terrorism cases fairly and effectively without disclosing classified information or jeopardizing national security. Our research shows that although federal-court terrorism cases often present significant challenges, judges and lawyers have generally managed to address and overcome these problems and that the criminal justice system has proved itself capable of handling a broad variety of terrorism prosecutions.
In May 2008, Human Rights First released In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, a White Paper which I co-authored with my then-law partner, Richard B. Zabel. (1) Based on a comprehensive review of more than one hundred and twenty actual prosecutions dating back to the 1980s, In Pursuit of Justice concluded that the criminal justice system is well-equipped to handle a broad variety of criminal cases arising from terrorism that is associated--organizationally, financially, or ideologically--with self-described "jihadist" or Islamist extremist groups like al-Qaeda. The roster of cases chronicled in In Pursuit of Justice ranges from blockbuster trials against hardened terrorists who planned or committed grievous acts around the world to complex terrorism-financing prosecutions and "alternative" prosecutions based on non-terrorism charges such as immigration fraud, financial fraud, and false statements. Many of these cases were preemptive prosecutions focused on preventing and disrupting terrorist activities. In Pursuit o f Justice acknowledged that terrorism prosecutions can present difficult challenges, and that the criminal justice system, by itself, is not "the answer" to the problem of international terrorism, but it found that the federal courts have demonstrated their ability, over and over again, to effectively and fairly convict and incapacitate terrorists in a broad variety of terrorism cases.
In the year after In Pursuit of Justice was issued, there were a number of important developments. On his second day in office, President Obama issued Executive Orders mandating the closure of the Guantanamo Bay detention facility within one year and establishing a Detention Policy Task Force to examine U.S. policy regarding the detention, interrogation, and trial of individuals suspected of participating in terrorism. (2) The effort to close Guantanamo has proved to be fraught with difficult policy and political choices and, more generally, our country continues to wrestle with the complex problems posed by the scourge of terrorism. Apart from Guantanamo, our military forces remain deployed in Iraq and Afghanistan; the situation in Pakistan is unstable; and radical Islamist groups continue to threaten our national interests in many corners of the globe.
In this environment, there is broad consensus that the government must continue to deploy all available resources--including military, intelligence, diplomatic, economic, and law enforcement tools--to address the threat of international terrorism. It seems self-evident that, as an important part of an integrated counterterrorism strategy, the government must have a reliable, stable system in place for prosecuting accused terrorists when such prosecutions are appropriate in light of the evidence and the law. The question remains as to where, and under what set of rules, terrorism prosecutions should occur.
President Obama has expressed a preference for trying accused terrorists in federal court whenever possible, but in two separate public statements in May 2009, he signaled that the …