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
More than seven years after the attacks of September 11, 2001, the government’s legal, practical and moral authority to detain suspected terrorists without trial remains a subject of fierce debate. There is general agreement among those who support preventive detention as well as those who oppose it, however, that the government can and should prosecute some individuals for terrorism-related criminal activity. Potential defendants could theoretically include the planners of or participants in actual terrorist attacks; United States citizens or legal residents who knowingly provide financial or other support to organizations such as Hamas, Al Qaeda or the Tamil Tigers; even home-grown sympathizers or “wannabes” whose grandiose plots may or may not prove to be unrealistic.
Prosecutors have, in fact, brought many such cases in federal court. Many of these cases have resulted in convictions, some not. Yet in the years since September 11, no consensus has formed about the best way to try persons accused of terrorism-related crimes.[i] Rather, a tripartite debate rages:
- The Bush Administration and others who generally view terrorism as a military problem did not prioritize criminal trial at all and favored trials by military commission whenever possible, arguing that traditional criminal trials in federal court are hamstrung by rules of procedure that make them not merely ineffective to secure convictions but affirmatively dangerous to national security.[ii] They correctly point out that military commissions are not a jury-rigged invention of the post-September 11 world but are a well-established method of trying war criminals.[iii]
- Civil libertarians contend that the traditional laws of war cannot be transferred without change to a potentially endless war on terror; that the current system of military tribunals lacks credibility and is legally flawed; and that the alleged inadequacies and dangers of criminal trials have been vastly overstated.[iv] They therefore argue that all terrorism trials should take place in federal courts under traditional rules.
- Finally, a third group argues that we need a special tribunal of some sort—a so-called “national security court”—with special rules to overcome the problems attendant to trials in federal court.[v]
The dispute about the optimal forum in which to try terrorists is, in reality, a dispute about what rules should apply in those trials. Do the existing rules of procedure and evidence in federal criminal cases pose unacceptable and unnecessary hurdles to the successful prosecution of terrorists? To the extent that they do, are less strict rules—for some or all terrorism trials—compatible with the Constitution and good policy? This paper suggests answers to these questions, while addressing only in passing whether those trials should take place in federal court, a court martial, a military commission, or some new national security court. The need for a coherent set of rules—regardless of the forum in which those rules apply—is underscored by recent events. In early May, press reports indicated that the Obama Administration was considering retaining the military commissions established by its predecessor, with added procedural safeguards.[vi] Given the questions that have been raised over the last seven years about the legality and fairness of these tribunals, the viability of these new commissions will depend greatly, if not entirely, upon what their procedures are, the extent to which they depart from the familiar rules of procedure for criminal cases, and the Administration’s ability to justify those departures.
For the most part, we conclude that there is no reason to depart dramatically from existing rules and procedures. Although the trial of alleged terrorists places burdens on the prosecution, defense counsel, the intelligence community and the courts, the available evidence does not establish the need for dramatic changes. We do suggest some minor modifications that could be made, consistent with the Constitution and overall fairness, to deal with particular concerns.
In one respect, however, the current situation calls for more substantial changes, both to limit the risk of improper disclosure of information that could damage our national security and to make the criminal justice system operate more smoothly and fairly in counterterrorism cases. The Constitution, federal law and the rules of criminal procedure both require the disclosure of much evidence to the accused in a criminal case and require that the accused be allowed to call witnesses in his defense and confront his accusers. When the evidence is classified or the witnesses are themselves terrorists, current procedures can create a Hobson’s choice between potential danger to national security from the disclosure of classified evidence or access to detained individuals, on the one hand, and restrictions on a defendant’s right to defend himself, on the other.
Congress could significantly ameliorate, if not entirely eliminate, these problems by authorizing the creation of a National Security Bar—a permanent corps of security-cleared lawyers who would be available to represent defendants in terrorism-related cases—and changing the rules for handling classified evidence when a defendant is represented by a member of this new bar. Many former government lawyers or others already have security clearances and have shown that they can be trusted to protect government secrets just as much as prosecutors. Composed of such lawyers, a National Security Bar would have full access to all classified information that is subject to disclosure in representing their defendants—access as unencumbered as if no national security issues were involved in the case at all. They would participate in all court proceedings about classified information—proceedings that are often now held on an ex parte basis. To the extent that other detained terrorists are potential witnesses, cleared counsel could participate in depositions of these witnesses. But they would be barred from disclosing classified information to their client or to any co-counsel who is not also a member of the National Security Bar.
Critically, however, the choice of whether to be represented by a member of the National Security Bar or by other counsel would be up to the defendant, not the government or the court. The defendant, after a hearing in open court, could choose between having counsel with full access to relevant information but restricted communication, or full communication with counsel and restricted access to information. By allowing for the participation of counsel with a security clearance, creation of a National Security Bar should minimize the risk of improper disclosure; by placing the choice in the hands of the defendant, it should minimize the burden on constitutional rights.
This proposal is not a panacea. It does not fully deal with the problem of the defendant who represents himself, for example, and then seeks access to classified information. Nor does it ensure that legally acceptable alternatives will always be available to prevent the need to disclose classified evidence—such as the testimony of a detainee who is being held for intelligence interrogation—although it should minimize the number of such situations. Creation of a National Security Bar to represent alleged terrorists, combined with the flexible use of deposition testimony and substitutes for classified information, all accomplished through the participation of cleared counsel, can ameliorate but will not entirely eliminate the conflict between a defendant’s rights and national security imperatives.
Still, establishing a National Security Bar and modifying the rules for handling classified information should enable the justice system to conduct trials that look as much as possible like normal criminal trials, while handling more deftly than it now does classified information that can currently both cause unfairness to defendants and unduly inhibit prosecutions. There is, unfortunately, no cost-free method of resolving the problems created by criminal trials of alleged terrorists. Benefits in speed, ease of conviction and protection of information are accompanied by costs in accuracy, fairness and public perceptions, and vice versa. What follows is our assessment of the right way to strike the balance between these countervailing costs, with particular emphasis on how a National Security Bar might alleviate our current problems.
[i] The term “terrorism-related crime” is not self-defining. Equating it to prosecution for violations of particular statutes is both over-inclusive (since it could include prosecutions of domestic terrorists that do not present the same problems discussed in this paper) and under-inclusive (in that, for example, prosecution of al Qaeda members for immigration violations or false statements could present those problems). The need to define the term is most acute if terrorists are to be tried in special tribunals, to delineate the tribunal’s jurisdiction.
[ii] See, e.g., Ruth Wedgwood, “The Case for Military Tribunals,” Wall Street Journal, December 3, 2001.
[iii] See Curtis Bradley and Jack Goldsmith, “The Constitutional Validity of Military Commissions,” The Green Bag 5, vol. 2 (2002): 249, 250-52, recounting the United States’ use of military commissions during the Revolutionary War, Civil War and World War II; Jack Goldsmith and Cass Sunstein, Military Tribunals and Legal Culture: What a Difference Sixty Years Makes, 19 Constitutional Commentary 261 (2002), noting widespread praise for the establishment of a military commission to try captured Nazi saboteurs.
[iv] See, e.g., Neil Lewis, “Red Cross Criticizes Indefinite Detention In Guantanamo Bay,” New York Times, October 10, 2003; Anthony D. Romero, “End Military Commissions,” Huffington Post, February 12, 2008, http://www.huffingtonpost.com/anthony-d-romero/end-military-commissions_b_86249.html; Richard B. Zabel and James J. Benjamin, Jr., In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, Human Rights First, May 1, 2008; Kenneth Roth, “After Guantanamo: the Case against Preventive Detention,” Foreign Affairs 87, iss. 2 (May/June 2008): 2; “[S]uspects tried before military commissions can be convicted, and even executed, on the basis of statements secured by coercion. Rules protecting interrogation methods from disclosure coupled with lax hearsay rules mean that these men could be sentenced to death based on second- or third-hand affidavits summarizing statements obtained through abuse, without any meaningful opportunity to challenge the evidence.”
[v] See, e.g., Andrew C. McCarthy and Alykhan Velshi, “We Need a National Security Court,” working paper (American Enterprise Institute, 2006), http://www.defenddemocracy.org/images/stories/national%20security%20court.pdf; Harvey Rishikof, “A Federal Terrorism Court,” working paper (Progressive Policy Institute, 2007). Many proposals for a national security court encompass trial as well as preventive detention, an issue that is beyond the scope of this paper.
[vi] William Glaberson, “U.S. May Revive Guantanamo Military Courts,” New York Times, May 1, 2009.