Prosecuting Terrorism: Maintaining a United Criminal Justice System Commentary
Prosecuting Terrorism: Maintaining a United Criminal Justice System
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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,

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