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Sunday, September 11, 2011

Prosecuting Terrorism: Maintaining a United Criminal Justice System
8:09 AM ET

Christie Tomm, St. John's University School of Law Class of 2012, is the author of the second article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. She writes on the need to maintain a single justice system in prosecuting alleged foreign terrorists...

After a decade of uncertainty, the Obama administration recently announced that Khalid Sheikh Mohammed would be tried in a military tribunal, as opposed to federal court. Until the death of Osama Bin Laden, Mohammed was the person most directly involved in the 9/11 attacks apprehended by US authorities. As such, his prosecution would function as a symbol of much-awaited justice for those Americans whose lives were devastated by the horrific events of that day. However, in deciding to try Mohammed in a military tribunal, that justice will be muted and its significance undermined.

The US government set a dangerous precedent when it passed the Military Commissions Act of 2006 (MCA). In doing so, it gave another governing body, one that is not required to adhere to the fundamental rights outlined in the Constitution, jurisdiction to determine the guilt or innocence of non-citizens suspected of terror-related crimes. For the Constitution to continue to serve as a fundamental governing principle nationally and internationally, its validity and dominance in the federal criminal justice system should never be questioned. To ensure this, when a person, citizen or non-citizen, is charged with any crime, from petty larceny to tax evasion or terrorism, there can be only one set of rules that govern what rights the defendant is entitled to.

The MCA is contrary to the principles established by the US during more than 200 years of common law. The MCA allows military tribunals to admit into evidence confessions that do not respect an individual's Miranda or Fifth Amendment rights, and the MCA does not require that a terror suspect be given a trial to determine his guilt once he is deemed an enemy combatant, essentially allowing for his indefinite detention. However, despite the fact that the federal criminal justice system does provide these fundamental rights, it is more than adequately able to handle the trials of suspected terrorists. The executive branch, through its specially trained district attorneys, FBI agents and terrorist task forces, is prepared to deal with the particular challenges that come with investigating and trying a suspect that is not a US citizen, likely to be uncooperative and to evoke controversy and intense emotion in the public forum.

The federal criminal justice system also has procedural benefits, such as well-established sentencing guidelines with longer minimum sentences for terrorism-related crimes and the district attorneys have more power to negotiate plea deals. Furthermore, there is a greater likelihood that other nations will investigate intelligence gathered from suspected terrorists when they are being tried in a more trusted federal court system. Additionally, federal courts also have the benefit of the public-safety exception recognized by the US Supreme Court in Quarles v. New York, which resolved Congress's concern that the Fifth Amendment right not to self-incriminate was an unmanageable burden on the prosecution of suspected terrorists. Under the public-safety exception, when the police are aware of a danger to the public that needs to be resolved immediately, they can ask suspects about the risk without Mirandizing them, and the statements will still be admissible at trial. Faisal Shahzad, the "Times Square Bomber," was interrogated under the public-safety exception, ultimately pleading guilty to the attempted bombing and then sentenced to life in prison.

In spite of these facts, Congress turned away from the federal criminal justice system and invoked the rules of war, which have not been considered since World War II, to create an alternate justice system and rules of criminal procedure. However, in doing so, Congress has opened the floodgates. This approach was never necessary to begin with in light of the adequacy of the federal criminal justice system. Furthermore, going forward there are grave concerns regarding the impossibility of limiting the MCA's use only to suspected terrorists that are foreign aliens. If the US is going to demand high human rights standards of other nations, it must meet them itself. The only way to do this is to exclusively use the federal criminal justice system in order to convey the confidence that the US can, and will, provide justice to those wronged while guaranteeing certain fundamental rights to defendants that are still presumed innocent. In no instance would such a statement have been more significant than in Khalid Sheik Mohammed's case.

Christie Tomm is a graduate of Swarthmore College with degrees in economics and history. Tomm is the author of the note "The U.S. Criminal Justice System: Protecting Constitutional Rights and National Security," which will be published in the forthcoming issue of the Journal of Civil Rights and Economic Development.

Suggested citation: Christie Tomm, Prosecuting Terrorism: Maintaining a United Criminal Justice System, JURIST - Dateline, September 11, 2011,

This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at

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Friday, June 25, 2010

PITTSBURGH: Terrorism and the Law
11:06 AM ET

Kristine Long, Jurist Student Staff Association (JSSA) President, Pitt Law '11, attended the First Annual JSSA Debate...

The first debate hosted by the JURIST Student Staff Association concerned the heated topics of terrorism and national security. These topics have became increasingly relevant to Americans in the wake of 9/11, as the United States responded to the threat of terrorism by changing airline security procedures, drafting and passing the Patriot Act, and launching Operation Enduring Freedom in Afghanistan. In the nearly 10 years since 9/11, the War on Terror has impacted every American, and, as such, the debate was both timely and important.

The two participants, Jeffrey Addicott, Director of the Center for Terrorism Law at St. Mary's University of Law and Susan Herman, President of the American Civil Liberties Union (ACLU), have written prolifically on national security and terrorism issues. Both have been featured writers on JURIST's Forum service, and it was incredibly fortunate to have both speak about the relevant legal changes in terrorism law. At the beginning of the debate, I incorrectly assumed that the speakers would hold opposing views based on their respective organizations. However, I was pleasantly surprised to find that Addicott and Herman had common concerns and beliefs about terrorism and national security.

Professor Addicott launched the debate with a single question: "Are we at war?" If so, he argued, the United States under both Presidents Bush and Obama has acted in accordance with the laws of war with respect to its treatment of enemy combatants at Guantanamo Bay, Cuba. Addicott said that if the United States is not at war, then the government's actions are illegal and in violation of both domestic and international law. He argued that the United States is indeed at war and said that it is within the President's power to make war under Article I of the Constitution. He further cited a September 20, 2001 address to Congress in which President Bush made clear that the 9/11 attacks were an act of war and that the US government would respond with a War on Terror against Al Qaeda. In addition, he said, both Congress and the Supreme Court have acknowledged a state of war with the creation and affirmation of decisions rendered by Military Tribunals, which are permitted only during times of war.

But even if the question of whether the United States is at war is binary, the process by which the United States finds and tries enemy combatants is not as simple.

This murky and vague process is exactly what concerns Professor Herman. While she does not necessarily question whether the US is at war, she is troubled by the scope with which the US applies its traditional war powers to a non-traditional enemy. In the past, she said, war and enemies were readily discernible - enemies wore distinct uniforms and countries formally declared war on one another. However, terrorism and terrorists do not fit this traditional paradigm. The concern posed by Professor Herman, in response to Professor Addicott's question, is: "What are the limits to the United States' war powers? She said that under the guise of its state of war in Afghanistan, the United States can detain American and foreign citizens, both domestically and internationally. She said that by labeling citizens "enemy combatants," the United States can question and detain them for years with limited rights. Yet, Professor Herman wonders, if the international legal community cannot cohesively define a terrorist act, how can it begin to define the term "enemy combatant"? She did not disagree with Professor Addicott's state-of-war analysis, but she was adamant that the US needed to establish a transparent process by which citizens or enemy combatants can receive a fair trial and due process.

Despite some diverging opinions, both Addicott and Herman agreed that there are differences between criminal and terrorist acts and that the legal community has yet to clearly distinguish between the two extremes. Both participants cited anecdotal evidence that is troubling to either side: a college student was detained and questioned in an airport for merely having Arabic flashcards whereas detainees found innocent and released went on to commit terrorist acts.

Currently, governments are at odds as to how to combat the War on Terror with traditional legal principles, and the US Supreme Court continues to wrestle with the issue of what constitutes fair process. In the cases Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, the Court failed to form a majority opinion as to the proper legal position courts should take with respect to enemy combatants. The cases did hold, however, that US citizens have the right to challenge their detention on the basis of due process. In contrast, under the Geneva Conventions, the government has the right to indefinitely detain non-citizens until the end of the war.

The speakers' questions illuminated the difficult task governments and legislatures have in creating terrorism policy. While the participants did not take completely opposite positions, there does appear to be tension between robust national security and individual civil liberties. In my opinion, the two principles must be balanced, but such a balancing act has eluded this government for generations. As Alexander Hamilton stated in Federalist No. 8, "safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates." In maintaining that balance, our government must be aware of the consequences of moving too far in either direction.

The questions posed by legal scholars and governments are integral to how the general public perceives the war on terror. Thus, informed public debates such as this one are vitally important to maintaining America's legal tradition of a marketplace of ideas. The dissemination of information is a positive step toward properly addressing the murky issues of terrorism and national security.

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Wednesday, February 25, 2009

GUANTANAMO: Challenge and Change Require EU Response
12:02 PM ET

Guest commentator Mike McNerney, Washington College of Law American University JD '09, is a former US Air Force officer who recently visited the US base at Guantanamo Bay...

European Union (EU) nations have been intensely debating whether to accept convicted and released Guantanamo detainees. Some countries have agreed to do so, while others refuse, and the situation is fraught with legal complexities because people can freely travel among EU nations. The pressure to make a legal determination is mounting as the United States begins the process of closing Guantanamo while struggling with the legal implications of an unstable military commission system.

Recently, the National Institute of Military Justice (NIMJ) sent me to observe the military commissions at Guantanamo Bay. I joined the military in response to 9/11 and the NIMJ felt that my position as a law student and experience as a veteran would give me a unique perspective on the military commissions process.

After seeing the commissions in action, I felt firsthand what I had previously understood on a purely intellectual level. It's a powerful experience to see these commissions in person and sit in the same room with the men who changed so many American lives. Everyone in the courtroom overflows with emotion. Some rage at the unapologetic viciousness of the detainees, while some direct their frustration at the inadequacy of the commissions themselves. The Obama Administration should take care to fix the commissions in order to assuage this anger.

As Obama's top officials begin the difficult task of closing Guantanamo and reforming the military tribunal system, they should remain cognizant of four competing imperatives, each of which must be given its proper place if America is to regain its standing in the world while providing for the safety of its citizens. The first of these issues is national security, which takes into consideration the protection of Americans at home and abroad. The second is justice, which promises that the guilty will be tried and punished through a reasonable and impartial legal process. The third is expediency, which is a necessity in bringing closure to both the victims and the perpetrators of terrorist acts. The last is a stable legal structure built upon rules understood and adhered to by all parties. The Bush Administration, rather than considering the necessity of each of these four elements, decided to focus almost exclusively on security and expediency. Unfortunately, the Bush Administration's sincere desire to protect has not served us well and seems to have glossed over the imperative elements of justice and legal stability.

In the wake of 9/11, the Bush Administration's desire to convict detainees quickly at the expense of establishing a durable legal structure yielded a disorganized system that has frequently broken down. Lawyers are forced to argue based on unclear points of law and judges have almost no precedent to guide them in making their decisions. Some of the conspirators in the 9/11 case were captured in 2002 and still aren't even at the point where they can enter pleas.

Additionally, legalistic reasoning that allowed for detainee abuse outraged the nation and undermined the legitimacy of proceedings. Now, in a dramatic overcompensation, military officials are so afraid of allegations of mistreatment that they fret over whether the seats on the detainees' buses have soft enough cushions. Allegations of torture have also harmed our position in the world as a just and humane society. When we lose our moral authority, we lose our ability to prevent atrocities in the rest of the world, which makes us less secure as a nation.

The Guantanamo detainees can see these deficiencies and exploit them. They abuse the translators and make endless requests for irrelevant paperwork. They follow current events and know precisely what to say to get their message into the media. They also refuse to cooperate with their lawyers and know exactly how far to push the judge. This stands in stark contrast to the parallel habeas corpus proceedings underway in federal court, where some have been very cooperative.

The end result is often sad political theater rather than a legitimate legal process. Many of the arguments and decisions rendered under the military tribunals appear geared toward trying cases in the court of public opinion rather than in a court of law. Lawyers on both sides become frustrated and those frustrations can turn into animosity for opposing counsel. Humanitarians who observe the detainees and the military personnel who guard them treat each other with uneasy suspicion because neither group trusts the political agenda of the other.

The system of justice I witnessed at Guantanamo really doesn't work. It also needlessly divides the American people. While I hate to see these proceedings delayed yet again, the Obama Administration needs to re-think the current faulty process and come up with a system that makes sense. This new system must better balance all four competing imperatives and carefully consider public opinion. Additionally, the polarized advocates on both sides need to drop their most unrealistic demands and reach practical compromise. If not, the American people may have to wait another eight years for justice.

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