[JURIST] Terrorism cases should be tried in the US federal criminal court system [official website], rather than by military tribunals [JURIST news archive] or special terrorism courts, according to a report [PDF text; HRF materials] released Wednesday by Human Rights First [advocacy website] in conjunction with two former federal prosecutors. Consolidating materials from over 120 international terrorism cases, the report argues that federal courts are versatile and creative enough to deal with defendant's rights, national security, and other concerns that might arise when trying terrorism cases:
The civilian justice system offers several different avenues, under existing law, for the government to secure the detention of an individual whom it believes is complicit in terrorism. If the government files criminal charges, it can seek detention under the bail statute. If the suspect is an alien not lawfully present in the United States, the government has broad latitude to arrest and detain him pending removal proceedings. The government may also seek an individual's arrest on a material witness warrant, but this approach is viable only for a limited time period and carries with it important procedural safeguards.
Of these three methods, the first is often the most direct and effective. However, the government may face a quandary in determining whether to bring criminal charges against a terrorism suspect. In some cases, the government may face the problem of insufficient admissible evidence to support a criminal charge — even though it may firmly believe, perhaps based on reliable but inadmissible intelligence information, that an individual presents a real danger. In other cases, an arrest may be feasible but could impair the government’s ability to successfully prosecute the defendant by interrupting the investigation and thus cutting off the government's ability to develop additional evidence. In some such cases, a public arrest may damage ongoing investigations of larger terrorism networks by revealing the government’s scrutiny and tipping off co-conspirators.
For years, prosecutors have faced these sorts of challenges in serious criminal matters such as organized crime and gang prosecutions.
The report also says that the delays and controversy surrounding the military commissions at Guantanamo Bay [JURIST news archive] illustrate the drawbacks to creating an entirely new system to deal with the cases. To date, 16 Guantanamo detainees have been charged under the Military Commissions Act of 2006 [DOD materials], passed by Congress after the US Supreme Court ruled [opinion, PDF; JURIST report] that the previous system, created by US President George W. Bush, violated US and international law. AP has more.