Optimizing Criminal Prosecution as a Counterterrorism Tool

December 19, 2008

The following is part of the Series on Counterterrorism and American Statutory Law, a joint project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution


Prior to the 9/11 attacks, the United States relied primarily on federal criminal prosecution when it sought to incarcerate suspected terrorists for an extended duration.[i] In the aftermath of 9/11, however, the United States buttressed its existing options for long-term detention of terrorism suspects by asserting that some such persons are combatants subject to military detention for the duration of hostilities pursuant to the law of armed conflict, and also by establishing military commissions to oversee war crimes trials for a subset of those individuals.[ii] These tools sparked intense controversy. Amid this controversy, however, an important point of consensus has emerged, namely, the need for a criminal justice system maximally capable of trying and disabling suspected terrorists. For opponents of the new military alternatives, the criminal justice system represents the legitimate alternative to illegitimate exercises of presidential power. For proponents, it offers a useful additional set of tools for situations in which military options were unavailable or unpalatable—for citizens arrested domestically, for example, or when foreign governments refuse to transfer people for extra-criminal detention. Whatever the merits of the military alternatives, in other words, all sides in the debate agree that America needs a federal criminal justice system adequate to the task of providing whatever long-term detention capacity may be required in connection with suspected terrorists.

That need has arguably grown more acute as a result of the 2008 election. The incoming Obama administration seems likely to eliminate the military commission system for war crimes trials, and it may substantially reduce reliance on preventive military detention, at least for those individuals captured outside traditional combat zones.[iii] The result will be increased pressure on the criminal justice system—pressure that will test its capacity.

The question of whether the system is up to the task has sparked a sharp debate of its own.[iv] Some contend that it already suffices to provide whatever long-term detention authority the government requires.[v] Others contend that elimination of the military options will create an intolerable gap in detention capacity, and that the government therefore should create a new, specially-tailored detention system—perhaps along the lines of a national security court—in order to close that gap.[vi] Few defend the status quo, though some have cited the results in the first military commission trial as proof of that system’s fairness.[vii] And the addition of vigorous habeas review to existing military detention practices—resulting in an order for the release of five of the first six detainees to have their cases considered[viii]—may yet generate similar arguments regarding preventive military detention as it now stands after years of litigation.[ix]

I do not propose to resolve this debate, but instead to focus on the point of consensus—that America needs an optimally functional criminal justice apparatus for counter-terrorism cases—and to discuss how America might move closer to that goal. To do this, I explore first the particular capacities and limitations of the federal criminal justice system as it currently stands. The first two sections of this paper identify with precision both the substantive and procedural considerations that together define the federal criminal justice system’s current capacity for conviction—and hence for long-term detention—in terrorism-related cases, with an emphasis on the scenario in which the government wishes to intervene before harm occurs.[x] This review reveals that federal criminal prosecution is far more prevention-oriented and procedurally flexible than some critics admit. At the same time, however, the review illustrates the specific ways in which hard-wired aspects of the federal criminal justice system limit its reach in comparison to at least some alternative detention systems.

Many of these limitations flow from constitutional law and will therefore resist any congressional attempt at reform. Others, however, do not, and Congress therefore has room to increase the system’s capacity. Optimization, in fact, involves not just expanding substantive criminal law, but also more carefully tailoring existing federal crimes and clarifying ambiguities associated with certain procedural questions. In that spirit, in the paper’s third section I suggest a series of steps Congress could take to make the criminal justice system a more useful tool in counterterrorism cases. These include:

  • expanding the existing criminal prohibition on the receipt of military-style training;
  • expanding the existing War Crimes Act to include attacks by non-citizens directed against civilians or civilian objects during armed conflict;
  • calibrating the maximum sentence for providing material support to designated foreign terrorist organizations so that defendants who intend harm face higher maximums, while defendants who acted out of ignorance or foolishness face lesser sentences;
  • amending the 1994 law forbidding material support for terrorism so as to confine its use to scenarios actually involving terrorism;
  • holding hearings relating to the scope of conspiracy liability as it connects to terrorism in general and the global jihad movement in particular;
  • clarifying the scope of the government’s obligations to search the files of the intelligence community for exculpatory information that the government must disclose to defendants; and
  • amending the Classified Information Procedures Act (CIPA), which guides the handling of classified information in criminal proceedings, to permit the appointment of “standby counsel” to act on a defendant’s behalf in hearings in which the defendant has insisted upon his or her right to self-representation.

Adopting these reforms will not enable the criminal justice system to provide a detention option in every circumstance that might be within the reach of the current military detention system or some alternative detention framework. Constitutional restraints ensure that some gap will remain in that respect. Congress can, however, minimize that gap by maximizing the detention capacity of the criminal justice system.


[i] See Richard B. Zabel & James J. Benjamin, Jr., Human Rights First, In Pursuit of Justice: Prosecuting Terrorism Cases in Federal Court (2008), at

[ii]See generally Robert Chesney & Jack Goldsmith, Terrorism and the Convergence of Criminal and Military Detention Models, 60 Stan. L. Rev. 1079 (2008).

[iii]See Peter Finn, Guantánamo Closure Called Obama Priority, Wash. Post, Nov. 12, 2008, at A1 (discussing the incoming administration’s interest in shuttering Guantánamo); Steven Lee Myers, Bush Decides to Keep Guantánamo Open, N.Y. Times, Oct. 20, 2008) (same). The Obama administration will almost certainly continue to employ some form of military detention at least with respect to persons captured by the United States in connection with ongoing combat operations. Cf. Zabel & Benjamin, supra note 1, at 2 (observing that “As part of ongoing military operations, soldiers and sailors will capture and detain enemy fighters, without punishing them, in order to disable them from fighting against the United States. This is both lawful and fundamental to the effective prosecution of war, and it does not generally implicate the criminal justice system.”).

[iv]See William Glaberson, Post-Guantánamo: A New Detention Law?, N.Y. Times, Nov. 14, 2008 (surveying the debate).

[v]See, e.g., Human Rights First, How to Close Guantánamo: Blueprint for the Next Administration (Aug. 2008) (arguing that federal criminal prosecution provides an adequate basis for incapacitating terrorism suspects, and recommending on that basis that military detainees at Guantánamo either be prosecuted in federal court or else transferred to other countries or simply released),; Sarah E. Mendelson, Closing Guantánamo: From Bumper Sticker to Blueprint (July 15, 2008) (draft) (same),; Steven I. Vladeck, A Critique of National Security Courts (The Constitution Project & the Coalition to Defend Checks and Balances, June 2008) (disputing the view that Article III courts are not adequate venues for prosecution), at 2, available at; Stephen J. Schulhofer, Prosecuting Suspected Terrorists: The Role of the Civilian Courts, Advance: The Journal of the ACS Issue Groups 63-64 (2008) (asserting that “terrorism suspects can and should be indicted and tried for their alleged crimes in the ordinary civilian court system”), available at The most thorough analysis of the substantive and procedural aspects of the federal criminal justice system as it relates to terrorism is the report that Richard B. Zabel and James J. Benjamin, Jr. produced for Human Rights First, titled In Pursuit of Justice: Prosecuting Terrorism Cases in Federal Court. See supra note 1. Zabel and Benjamin conclude that the “system is reasonably well-equipped to handle most international terrorism cases.” Id. at 2. Zabel and Benjamin are careful to note, however, that the military detention of persons captured in “ongoing military operations . . . is both lawful and fundamental to the effective prosecution of war . . . .” Id. The report thus is best understood as rebutting the claim that a “national security court” should “displace the criminal justice system,” but not as a challenge to the use of military detention in at least some circumstances. Id.

[vi]See, e.g., Andrew C. McCarthy & Alykhan Velshi, We Need a National Security Court (American Enterprise Institute) (arguing that rules of process disfavor reliance on criminal prosecution of terrorists), available at; Benjamin Wittes, Law and the Long War 157-60, 169-73 (2008) (describing an array of procedural obstacles that can arise in connection with criminal prosecution of terrorism suspects who may be too dangerous to release); Michael B. Mukasey, Jose Padilla Makes Bad Law, Wall St. J, Aug. 22, 2007 (questioning the utility of criminal prosecution as a mechanism to incapacitate terrorists); Jack L. Goldsmith & Neal Katyal, The Terrorists’ Court, N.Y. Times, July 11, 2007 (arguing that “[c]riminal prosecution should still take place where they can,” but that “they are not always feasible”); Amos N. Guiora, Military Commissions and National Security Courts After Guantánamo, 103 Northwestern University Law Review Colloquy 199, 203-204 (2008) (“Because they lack specialization in the intelligence arena, Article III courts are improper venues for trying suspected terrorists.”). Glenn M. Sulmasy, The Legal Landscape After Hamdan: The Creation of Homeland Security Courts, 13 New Eng. J. Int’l & Comp. L. 1 (2006); A. John Radsan, A Better Model for Interrogating High-Level Terrorists, 79 Temp. L. Rev. 1227, 1276-82 (2006).

[vii]See, e.g., William Glaberson, Bin Laden Driver Sentenced to Short Term, N.Y. Times, Aug. 7, 2008 (describing the debate regarding the implications of the split sentence and verdict for the fairness of the system).

[viii]See Boumediene v. Bush, __ F. Supp.2d __ (D.D.C. Nov. 20, 2008) (determining that the government lacked sufficient evidence to detain all but one of six detainees captured originally in Bosnia).

[ix] I have argued elsewhere that the poor fit between the assumptions underlying the law of armed conflict and the particular characteristics of Al Qaeda have given rise to an ad hoc convergence process in which the procedural aspects of military detention (and possibly also the substantive aspects) have gravitated toward those normally associated with the criminal prosecution model (while the criminal prosecution model as applied to terrorism has experienced similar pressure to gravitate toward the features of the traditional military detention model). See Chesney & Goldsmith, supra note 2. The latest developments in connection with habeas review of military detention decisions tend to confirm that descriptive account.

[x] Detention capacity is not the only variable one may use to compare existing and proposed systems, of course, but it is a central one. Examples of other relevant considerations include the opportunities each system presents for gathering intelligence, and also each system’s perceived domestic and international legitimacy (factors impacting their long-term sustainability and the extent to which other states will cooperate with them). Ultimately, of course, the question of which considerations matter depends on the strategic goals to be achieved by counterterrorism policy. See Matthew C. Waxman, Administrative Detention and the Questions of Why, Whom and How: Integrating Strategy with Legal Innovation (Brookings 2008) (discussing the importance of linking legal policy to strategic goals).