op-ed

A death knell for terror trials in civilian courts?

Miles Taylor Co-Founder, Partisans.org
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In a May 2009 speech, President Barack Obama announced that Ahmed Ghailani, a Guantanamo detainee suspected of involvement in the 1998 U.S. embassy bombings in Kenya and Tanzania, would be transferred to the United States for trial in federal court.  The president assured his audience that civilian courts were “tough enough” to prosecute terrorists like Ghailani and that justice would be served.

This week, a jury acquitted Ghailani of all but one of the more than 280 counts against him, including 224 murder counts.  Despite the Justice Department’s confidence in its case, the jury found him guilty only of plans to destroy U.S. property — hardly the “tough” result Obama predicted from the civilian court.

The verdict delivers a sweeping blow to the Obama administration’s plans to try Guantanamo detainees in the United States and should prompt administration officials to ask themselves, “Are civilian courts the best place to prosecute international terrorists?”

The Ghailani case shows that the answer is a resounding “no,” and for two primary reasons: (1) civilian courts are ill-equipped for the task and (2) terror suspects like Ghailani aren’t really common criminals in the first place.

First, it is clear that civilian courts are not fitting for trials of international terrorists.

U.S. federal courts, for instance, offer virtually no avenues for safeguarding sensitive intelligence intercepts that often serve as key pieces of evidence against a suspect.  This means that intelligence can be made open to the public, compromising on-going terrorism investigations.

In a 1993 terror trial in a U.S. civilian court, court rules forced prosecutors to hand over a sensitive list of 200 suspected terrorists.  The list made its way to Sudan within days, where Osama bin Laden and his henchmen could see which of their operatives had been compromised and, therefore, what sources the American intelligence community might be using.

The strict rules of evidence in civilian trials are also incompatible with the conditions of the battlefield, where many terrorism suspects are apprehended.  Typically, only eyewitnesses can testify at such trails.  But this is a difficult standard to meet in an environment where many witnesses are likely to be hiding, on-the-run, or dead.  In the Ghailani case, strict evidentiary rules caused the testimony of a key witness to be tossed.

Moreover, U.S. military and intelligence operatives overseas cannot be expected to treat terrorist hideouts with the care of common crime scenes.  In the United States, investigators have the time to lift every fingerprint from a scene and uncover even the smallest details.  But U.S. forces do not have the same luxury when an extremist is picked up in hostile enemy territory.

Second, international terror suspects don’t deserve to be treated as common criminals in the first place, as they are not engaged in routine crime.

Al Qaeda and affiliated terrorist groups have formally declared “war” on Western states, and their actions — such as the murder of 3,000 innocent civilians in one attack — are on a scale that has heretofore been seen only in wartime.  Those actions represent a serious and systematic violation of international law and laws of war.

Indeed, the Authorization for the Use of Military Force (AUMF) passed by Congress in 2001 gives the U.S. president the ability to fully prosecute a war against terrorist groups, and scholars have noted that it is comparable in scope to authorizations granted by Congress in past declared wars.  NATO even invoked Article 5 after the 9/11 attacks, declaring that an “armed attack” had occurred against all member states.  This effectively carried the legal significance of “war.”

In short, international terrorists like Ghailani are more appropriately defined as war criminals, and historically, war criminals have been tried in military commissions.  These venues offer evidentiary rules that are more compatible with the circumstances in which suspects are apprehended, they are more secure, and extremists have fewer chances to use proceedings as a microphone for their ideological agenda.

Arguments against military commissions, including the contention that they elevate terrorists to a higher stature — that of “warrior” — are belied by the facts.  Terrorist suspects are not treated by military commissions as legitimate “warriors” from the battlefield but as “unlawful enemy combatants.”  This is a status inferior to “prisoner of war” and rightly confers upon them fewer legal protections.  In stark contrast, civilian trials afford terrorism suspects the same rights as U.S. citizens, arguably a much higher honor.

Fortunately, the Obama administration doesn’t disagree with the legality of military commissions.  But its policy of mixing terrorism suspects between civilian courts and military commissions is logically inconsistent and clearly reckless.  The Ghailani case will surely serve as a needed, albeit unfortunate, wake-up call.

Miles Taylor works for The Chertoff Group, a security consulting firm, in Washington, D.C.  He served as a presidential appointee at the Department of Homeland Security during the Bush administration.  The views expressed here are his own.