Prosecuting Suspected Terrorists: The Role of the Civilian Courts

A the George W. Bush Administration has successfully prosecuted dozens of terrorism cases in the federal courts since the 9/11 attacks,1 Administration officials and other observers continue to argue that we need a special forum or specialized procedures for at least some sorts of terrorism cases. The principal concern has been that the rights available in federal court—especially the defendant’s rights to confront the evidence against him, to obtain evidence in his favor, and to be tried in a public proceeding—could jeopardize classified information that must be kept secret. On the other hand, any process that compromises these rights can unfairly hamper a defendant’s ability to defend himself and can open the door to the abuse of executive power. One attempt to solve this problem has taken the form of an entirely new system of tribunals—the military commissions designed to try terrorism suspects under rules of procedure and evidence crafted specifically with terrorism prosecutions in mind. That approach, ostensibly intended to streamline the trial process and avoid the supposed complexities of federal criminal procedure, has thus far had the opposite effect. While terrorism prosecutions in the federal courts have proceeded with no more complication and delay than attend any complex criminal case, the military commissions have been mired in litigation and have yet to result in a single trial.2 At the same time, the military commission system, though it has yet to yield any discernable benefits for the United States, has hampered cooperation with European allies and exacted heavy reputational costs that damage our effectiveness in many ways. If the military commission system itself is unnecessary, moreover, those costs are entirely needless. The need for a special system of tribunals has been wildly exaggerated. The federal courts are already well-equipped to protect classified information and to handle all the other supposed complexities of terrorism trials. Quite simply, terrorism suspects