Terrorists On Trial

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Terrorists On Trial

Military Commissions and Federal Courts

Carissa M. Mueller

Duke University

May 8, 2010


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Terrorists On Trial 2

Introduction

On December 26, 2009, Christmas Day bomber Umar Farouk Abdulmuttalab (UFA)

was arrested at Detroit Metropolitan Airport and later indicted on six counts, including attempted

murder, bringing an explosive on an aircraft, and use of a weapon of mass destruction.1 His

processing through the criminal justice system generated complaints, the most concerning of

which that he stopped providing valuable intelligence once he was read his Miranda rights.

Critics of Attorney General Holders handling of the UFA situation argue that UFA should

instead have been detained as an unprivileged enemy belligerent, interrogated under military

custody, and charged accordingly in a military commission.2

This situation raises the more general question of how to prosecute suspected terroristswho are apprehended within the United States. Many argue that they have violated federal

criminal law and should therefore be charged and prosecuted in federal court. Others argue that

they have violated the laws of war and should be detained as unprivileged enemy belligerents

prosecuted, if appropriate, through a military commission.

UFA is not the first to raise such a question. In 2001, suspected terrorist Ali Saleh Kahlah

al-Marri was arrested at his home in Peoria, Illinois. Originally charged in federal court with

credit card fraud and other criminal offenses, al-Marri was transferred to military custody and

later back to the criminal justice system.3 Similarly in 2002, suspected terrorist Jose Padilla was

arrested at Chicago OHare International Airport, transferred to military custody, and ultimately

sent back to the criminal justice system for trial.4

While each of these situations has raised the question of how to prosecute suspected

terrorists detained within the United States, the debate has focused predominantly on broad

weaknesses of the opposing system. Proponents of prosecuting by federal court criticize military

commissions for offering a sub-standard, biased form of justice. Opponents criticize the

procedures required by the criminal justice system as antithetical to our national security goals.

1 Indictment, United States v. Umar Farouk Abdulmutallab, No. 2:10-cr-20005.2 Lieberman, Joseph I. and Collins, Susan M. Letter to AG Holder, Eric H. Jr. and Brennan, John O. 25

January 2010.3 Fisher, Louis. The Constitution and 9/11: Recurring Threats to Americas Freedoms. Lawrence, Kansas:

University Press of Kansas: 2008. Pp 209-10.4 Id. at 197-209.


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Critics on both sides of the argument often fail to acknowledge that the military commission and

federal courts are different systems, each appropriate in different scenarios. This paper

specifically considers scenarios involving suspected terrorists who are arrested or detained on

United States territory, as was the case with al-Marri, Padilla, and UFA.

In our ongoing conflict with international terrorists that is sure to outlast the physical

battles in Iraq and Afghanistan, situations similar to those of UFA, al-Marri, and Padilla are

likely to surface again. Indeed, on May 4, 2010, Faisal Shahzad was arrested by the United States

in connection with the failed Times Square bombing attempt of May 1, 2010. 5 As such, it is

important to develop a model for prosecuting suspected terrorists apprehended within the United

States that is both grounded in legal precedent and that effectively accomplishes our policy

goals. In this paper, I analyze both the military commission and federal court systems as applied

in situations involving suspects who are detained within the United States. I will show that based

on this contextual analysis, suspected terrorists detained within the United States, such as UFA,

should be prosecuted in federal courts, not in military commissions. I further propose a model to

govern the law enforcement process that accounts for the apparent weaknesses of the criminal

justice system and ensures that prosecuting by federal court remains in line with our policy

objectives.

Legal Analysis: Military Commissions

Before evaluating the suitability of military commissions to prosecute UFA and others in

his position, we must determine whether prosecution by military commission is even an option

made available by the law. The use, jurisdiction, and process of the current military commission

system are governed by the 2009 Military Commissions Act. Though the current system was put

into place recently, we can trace the use of military commissions back to General George

Washington, who appointed a Board of General Officers in 1780 to try suspected British spy

John Andr.6Before dissecting the current law, it is helpful to understand the more recent

developments that have shaped the law into its current form.

Recent History

5 Mazzetti, Mark; Tavernise, Sabrina; and Healy, Jack. Suspect, Charged, Said to Admit Role in Plot.

The New York Times. 4 May 2010.6 Id. at 173.


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Military Commissions Act of 2009. This current version of the law includes additional

procedural safeguards supported by the Obama Administration. It is this Military Commissions

Act of 2009 that governs the system presently and thus that guides a subsequent analysis of the

legal jurisdiction and framework of the military commission system.

Current Legal Framework

Statutory law grants military commissions jurisdiction over anyone who is 1) an alien,

and 2) an unprivileged enemy belligerent.13 On the first requirement, the statute defines an alien

as any non-citizen.14Thus, only suspected terrorists who are notcitizens of the United States may

even be considered for prosecution by military commissions.

The Supreme Court has upheld this requirement repeatedly. During the Civil War,

President Lincoln established a military commission to try US citizens suspected of aiding the

Confederacy. InEx Parte Milligan, the Supreme Court denied his attempts, ruling that citizens

must be prosecuted through civilian court, so long as they are open and functioning.15 During

World War II, President Roosevelt declared a state of martial law in Hawaii, fearing that the

Hawaiian population (1/3 of which was Japanese) would provide cover for a Japanese invasion

of the United States through Hawaii. Authorities then replaced civilian courts with military

commissions. InDuncan v. Kahanamoka, the Supreme Court ruled this attempt invalidUS

citizens may not be tried in military commissions, even during military emergency.16 As a citizen

of Nigeria and not of the United States, UFA fits this first criterion. Faisal Shahzad, on the other

hand, is a citizen of the United States. In his case, prosecution by military commission is not a

legally available option.

On the second requirement, the law defines unprivileged enemy belligerent as any

individual other than a privileged belligerent that has (1) engaged in hostilities against the US or

its partners, (2) purposefully and materially supported hostilities against the US or its partners,

OR (3) was a part of al Qaeda at the time of the alleged offense.17

Thus, the enemy must first not fall under the category of a privileged belligerent. The

law distinguishes privileged belligerence from unprivileged belligerence based on adherence to

13 10 U.S.C. 948(c)14 10 U.S.C. 948(a)(1)15Ex Parte Milligan, 71 U.S. 2 (1866)16Duncan v. Kahanamoka, 327 U.S. 304 (1946)17 10 U.S.C. 948(a)(7)


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one of the eight categories enumerated in Article 4 of the Geneva Convention relative to

treatment as a prisoner of war.18 Since members of al Qaeda do not adhere to any one of these

eight categories19, they are not considered privileged belligerents.20

Less clear is the application of the enumerated points of classification. The first two

points concern participation in hostilities, but the scope of hostilities is not defined. While I

will not debate that soldiers captured in an active war zone have participated in hostilities against

the United States,21 UFA was not captured on the physical battlefield. Rather, he was detained at

an airport inside the United States. The law does not clearly define how far removed from the

battlefield an unprivileged enemy belligerent may be apprehended and still be subject to full

military custody and proceedings.

The Supreme Court inEx Parte Qurin suggests that location of capture is not particularly

relevant in such determination. In Quirin, the Supreme Court upheld the jurisdiction of the

military commission system over eight Nazi saboteurs captured within the United States.22

However, the government has encountered some difficulty in applying the Quirin precedent to al

Qaeda members. In al-Marri v. Bush, for example, the district court considered whether al-Marri,

a legal US resident alien, could be detained and held as an enemy combatant given that he was

arrested within the United States. The district court upheld the validity of his detention.23 On

appeal, the Fourth Circuit reversed, ruling that a person who is lawfully inside the United States

and who takes action to harm the United States is subject to charge, trial, and punishment by

civilian court, notto seizure and detention by military authority.24

In the similar case of US citizen Jose Padilla, the district court found in favor of Padilla,

18 10 U.S.C. 948(6)19 For an in-depth explanation justifying the determination of al Qaeda members as illegal combatants as

opposed to legal combatants, refer to Aldrich, George H. The Taliban, al Qaeda, and the Determination

of Illegal Combatants. American Journal of International Law, Vol. 96 no. 4 (Oct. 2002) pp. 891-898.20 Privileged belligerents instead fall under the jurisdiction of courts-martial.21 SeeHamdi v. Rumsfeld, 542 U.S. 507 (2004) for a more detailed explanation of why battlefield

captures fall under jurisdiction of military commissions.22Ex Parte Quirin, 317 U.S. 1 (1942)23al-Marri v. Bush, 274 F. Supp. 2d 1003-2003 (C.D. Ill. 2003).24al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007) at 186; al-Marri v. Pucciarelli,No. 2:04-cv-002257-

HFF (D.S.C., Jul. 15, 2008); Sherman, Mark and Barret, Devlin. Ali al-Marri, Alleged Al-Qaida Agent,

Indicted in Illinois Federal Court. The Huffington Post. 27 February 2009. Although the Fourth Circuit

decision was reversed en banc, the case was appealed to the Supreme Court; before the Supreme Court

heard the case, the government transferred Padilla to federal court. Many legal reviews suggest that if theSupreme Court had heard this case, they would have mandated al-Marris transfer to the federal courts.


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ruling that he had been unlawfully detained as an enemy combatant.25 Upon appeal, however, the

Fourth Circuit reversed, finding his detention authorized. Padilla nonetheless appealed to the

Supreme Court, claiming that he could not be considered an unprivileged enemy belligerent

because he was not arrested on a foreign battlefield, but rather within the United States. 26 Before

the Supreme Court could review this case, the US Government transferred Padilla to civilian

court. Both Padilla and al-Marri were tried in federal court, convicted, and punished for their

crimes. Thus, we cannot say for certain how the Supreme Court would have ruled regarding the

legality of their detention. More importantly, we do not know what the Supreme Court might

have said regarding their participation in hostilities against the United States and thus their

classification as unprivileged enemy belligerents, given their capture within the United States.

In 2008, however, the Supreme Court extended the constitutional right to habeas corpus

to detainees at Guantanamo Bay, finding that Guantanamo Bay was tantamount to US

property.27 Although this case dealt specifically with the issue of detention, it extended

constitutionalrights to detainees on the simple basis that they were held in an area tantamount

to US property. This suggests that those apprehended on US property would also have

constitutional rights, regardless of their citizenship status. Such rights include the right to a trial

by jury and other procedural safeguards not guaranteed by the Military Commission Act of 2009.

Taken together, these case decisions might suggest that the law does not consider those

captured within the United States eligible for military commission hearings, but instead requires

that they be prosecuted in federal court. Thus the legal jurisdiction of military commissions

would not extend to UFA, Shahzad, and others who are detained within the United States.

Finally, we must consider the third point of classification: whether a suspected terrorist

was a part of al Qaeda at the time of the alleged offense. 28 The application of this point is again

unclear. Making a distinction between members and non-members may be sufficient for

traditional armies, but al Qaeda is not a traditional army. Al Qaeda does not associate with a

particular state. Its organizational membership spans governments and nations, not excluding our

own. The organization includes both active and inactive members, some of whose only

connection to the organization may be self-proclaimed sympathy to the cause.

25Padilla ex re. Newman v. Rumsfeld, 243 F.Supp.2d 42 (S.D.N.Y. 2003)26 Petition for Writ of Habeas Corpus, June 30, 2004. Joint Appendix, Padilla v. Hanft, No. 05-6396 (4th

Cir. 2004), at 7.27Boumediene v. Bush, 553 U.S. ____ (2008).28 10 U.S.C. 948a(7).


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The courts have provided some clarity regarding this definition in several habeas corpus

cases wherein the court considered whether military detention was lawful. While this is a

different question from who may be prosecuted by military commission, in the process of

reviewing lawful detention, the courts are forced to consider the definition of al Qaeda

membership, which is relevant to this discussion.

The Supreme Court in Hamdi, for example, recognized the difficulty with defining an al

Qaeda member and explained that the lower courts would have to further define the permissible

bounds of the category as subsequent cases are presented to them.29 Since then, they have begun

to do so. In Gherebi v. Obama, the DC District Court narrowed the distinction to those who

receive and execute orders from al Qaedas command structure.30 Sympathizers,

propagandists, and financiers are thus excluded from the definition.31 Although this case has

also not been considered on appeal, the narrowest definition of an unprivileged enemy

belligerent could be therefore said to include battlefield captures and those who participate in the

command structure of al Qaeda. In the case of UFA, news broadcasts report that UFA trained

with al Qaeda in Yemen, was sent by al Qaeda to detonate an explosive in the United States, and

that other operatives in Yemen are being trained for similar missions.32 On this basis, UFA might

be considered an al Qaeda member, but without a formal court ruling, we cannot be sure.

Furthermore, because each of the points of classification explained above is so

contextual, the government must prove the defendants adherence to each point before

continuing with a military commission hearing to determine guilt or innocence. For example,

although UFA does meet the non-citizenship requirement, it would be more difficult to argue

during trial that he falls under the category of unprivileged enemy belligerent. In a military

commission hearing, the government would first need to make the case that UFA is an

unprivileged enemy belligerent before arguing his involvement in terrorist activities. Most

importantly, even if UFA does meet the definition of an unprivileged enemy belligerent, not all

suspected terrorists apprehended within the United States will. Thus this process must be

repeated each time the government wants to try a suspected terrorist by military commission. As

subsequent policy analyses on both military commissions and federal courts will show, this extra

29 Id. at 264230Gherebi v. Obama, 609 F. Supp. 2d at 68 (D.D.C. 2009)31 Id.32 Whittell, Giles. Im the first of many, warns airline bomber Umar Farouk Abdulmutallab. The

Times. 29 December 2009.


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burden of proof on the government is unnecessary when the federal court system can adhere

equally well, if not better, to our countrys counterterrorism policy priorities.

Policy Analysis: Military Commissions

Even if the law would allow us to use military commissions to prosecute UFA and others

like him, we must still consider whether weshoulduse them to prosecute suspected terrorists

detained within the United States. The system we use to prosecute these detainees must not only

fall within our legal boundaries, but also must adhere to our countrys policy goals in our conflict

with terrorism.

Though one might reasonably identify countless goals associated with prosecuting

suspected terrorists, three of the more established and overarching goals include keeping our

country safe, maintaining fair processes, and convicting those who are guilty and acquitting

those wrongly accused.

National Security

I list this goal first because it irrefutably constitutes the most important goal in our overall

conflict: keeping our country safe from violence is the very reason we engaged in hostilities in

the first place. Preserving our national security means not only capturing known terrorists and

removing them from the battlefield, but also preventing attacks planned for the future from

materializing. To do this, we must identify those who might be involved in planning future

attacks and extract information from them regarding the details of their plans.

Military commissions explicitly exclude all requirements for a speedy trial,33 leaving no

question that interrogators can take all the time that they need to gather intelligence before

sending a detainee to trial by military commission. Further, military commissions exclude all

protections offered to the accused against compulsory self-incrimination in federal courts.34

Consequently, confessions that an interrogator obtains during questioning using coercion would

be admissible in a military commission, so long as the coercion does not involve cruel,

inhuman, or degrading treatment,35 which would amount to torture.

The system we choose to prosecute terrorists must not only allow for the collection and

33 10 U.S.C. 948b(d)(A)34The Constitution of the United States, Amendment 535 This is prohibited by 10 U.S.C. 948r.


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use of such sensitive intelligence information; it must also keep this information secret from

other terrorists who might use it to further harm the United States. Military commissions provide

for this in an entire subchapter related to the protection of classified information36 and also allow

for the judge to close trials to the general public.37 These two allowances guarantee that

information sensitive to national security will not be leaked to any members of the public,

including other terrorists.

Fair Process

These provisions and subchapters may uphold our goals of national security, but they do

so at a cost to fair process. The updated Military Commissions Act of 2009 lessened the severity

of these costs by formalizing processes better than they had been in the past. The present system,for example, prohibits statements made under torture38statements which were admissible in the

past. It also gives the defendant a much more legitimate opportunity to obtain evidence and

witnesses39 than was available in the past and includes a provision for capital offenses,40 which

had previously been absent.

Despite these improvements, the procedural standards in military commissions remain

sub-standard even as compared to their counterpart in the military court system, courts-martial.

The courts-martial system is the more permanent and longstanding system of military justice,

used to try privileged enemy belligerents and members of our own armed forces for alleged

crimes. Courts-martial have been fashioned over the years to mimic as closely as possible the

procedural rules required in federal court. For example, in federal courts, the 6th Amendment

together with the Speedy Trial Act of 1974 requires that a defendant be indicted within 30 days

of arrest and brought to trial within 70 days of indictment.41 Courts-martial have relaxed this

right significantly, but still instruct that immediate steps shall be taken to initiate proceedings.42

By including this provision, the courts-martial system at least acknowledges the importance of

preventing unnecessary delays in trial and of resolving criminal cases in a timely fashion. On the36 10 U.S.C. 949 p-1, p-737 10 U.S.C. 949d(c)38 10 U.S.C. 949s39 10 U.S.C. 949j40 10 U.S.C. 949a(2)(c)(ii)41 18 U.S.C. 316142 UCMJ Sec. 810, Art. 10.


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contrary, the provisions governing military commissions bluntly refuse to apply this goal to

terrorism prosecutions, listing the right to a speedy trial along with four others as standards that

shall not apply to trial by military commission.43

Another example of unfair processes includes the lack of evidentiary rights, the most

problematic of which has been limited and unenforceable discovery rights. The military

commission hearing of Salim Ahmed Hamdan illustrates the severity of this problem: Hamdan

faced trial by military commission for material support to terrorism. During trial, the defense

requested and the government was ordered to provide all records relating to his confinement.

However, the prosecution did not provide any such documents until 9 days before the trial,

submitting over 600 pages of detention records to the defense. At 9:15 PM the night before the

trial, the government submitted another 500 pages, and submitted additional documents while the

trial was already underway.44 Some might use this example to illustrate that the military

commission system does in fact have discovery rights in place. However, that the trial was

permitted to proceed given that the defense received such a magnitude of evidence so close to the

trial date also illustrates the unenforceability of those standards.

Many would argue that terrorists do not deserve protection under such rules of procedure,

but detention does not guarantee guilt. Both federal courts and courts-martial pay close attention

to maintaining fair processes because the United States has repeatedly recognized fair processes

as a necessary safeguard to erroneous convictions of innocent people. A lack of fairness in court

proceedings contributes to the difficulty military commissions experience in achieving proper

convictions and acquittals.

Proper convictions and acquittals

In our ongoing conflict with international terrorists, it is important to bring to justice in

some form those who have taken actions to harm the United States. Despite their capacity to

uphold national security goals, military commissions have also simply not proven effective in

convicting terrorists. Since 2001, they have only secured convictions in 3 cases, the first of

which involved David Hicks, an Australian who pled guilty to one count of material support and

43 10 U.S.C. 948b(d)44 Sullivan, Stacy. Guilty in Guantanamo. Human Rights Watch. 7 August 2008.


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served a nine-month sentence at home in Australia.45 The second involved Salim Ahmed

Hamdan, who was captured in Afghanistan and sentenced to five and a half years in prison for

material support charges. Because by that point his proceedings had already outlasted his

sentence, he was released to his home country of Yemen to serve a one-month prison term.46 The

third involved Ali Hamza Ahmed Sulayman al Bahlul, who was sentenced to life in prison after

boycotting proceedings and refusing to participate in any part of his trial.47 None of these three

cases involves a suspected terrorists detained anywhere within the United States.

Even more troubling than the inability of military commissions to secure convictions is

their inability to acquit and release those innocent of their accused crimes. Especially in the

course of this current conflict involving prevention, we are sure to inadvertently apprehend some

who truly have not committed any wrongdoing. The system we use to prosecute suspected

terrorists must recognize this possibility and prove capable of acquitting those who have done no

wrong. Further, the system must be willing to release those it finds innocent from improper

detention.

The current military commission system is unable to do either of these things. The closest

military commissions have come to acquitting someone in our current conflict with terror was in

the case of Mohammad Jawad, a Guantanamo detainee believed to have been around 14 or 15

years of age at the time of his apprehension.48 Jawad was not actually acquitted, but rather filed

petition for habeas corpus in federal court, which resulted in a district judges ruling that he was

improperly detained, ending his military commission hearing.

Even if a military commission were to find a suspect not guilty of his crimes, there is no

45 United States Department of Defense. Hicks Court Motions. 2 Dec. 2004.

; Human RightsFirst. TheCase of David Hicks, Australia. < http://www.humanrightsfirst.org/us_law/detainees/cases/hicks.aspx>46 United States Department of Defense. Hamdan Court Motions. 3 Dec. 2004.

; Human RightsFirst.The Case of Salim Ahmed Hamdan, Yemen.

47 United States Department of Defense. Al Bahlul Court Motions. 2 Dec. 2004.; Human RightsFirst.

The Case of Ali Hamza Ahmed Sulayman al Bahlul, Yemen.

48 Reports of his age vary depending on the party making the claim. See also:

Mohammad Jawad. The New York Times. 29 Jul. 2009.

; Human

RightsFirst. The Case of Mohammad Jawad, Afghanistan.


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guarantee that the defendant would then be released from custody. In fact, the only defendant in

a military commission released from custody was Jawad, and Jawad was released by a federal

district judge who after hearing his habeas case ordered his release, stating that [e]nough has

been imposed on this young man to date.49

As the Supreme Court iterated numerous times50, the government derives its authority to

detain unprivileged enemy belligerents from the Authorization for Use of Military Force and the

general concepts of law of war. The laws governing the military commission procedures, namely

the Military Commissions Act of 2009, are separate from the laws authorizing detention.

Therefore, the governments ability to prosecute a defendant in military commission is not

directly related to its ability to detain that suspect in military custody. Even if a commission were

to acquit a defendant, the government would still have legal grounds for detention and nothing

compels them to release those whom the courts find have not committed any wrongdoing.

The Military Commissions Act of 2009 fails to provide any statutory instruction for the

release of those acquitted of their charges. In fact, the Department of Defense recently released a

manual detailing the rules used in military commissions.51This manual goes even further to

explicitly assert that, even in the face of an acquittal, continued detention may be authorized.52

Though the military commission system purports to try alien unprivileged enemy

belligerents for violations of the law of war and other offenses,53 without the power to reach

acquittals and affect the release of those it acquits, this system is incapable of maintaining any

sense of justice. That the government may use continued detention as a backstop to unsuccessful

trials begs the question, why do military commissions exist at all when their determinations have

no bearing on who we detain as our enemy? Whichever system we develop to prosecute

suspected terrorists should not be just a show of due process, but rather a true arbiter of justice

that we entrust to determine who has acted against the United States and who has not. The

system we construct should empower us to take appropriate retributive action only against the

people who have taken action against the United States and not those who were found innocent

49Glaberson, William. "Judge Orders Guantnamo Detainee to be Freed, quoting District Judge Ellen

Segal Huvelle. 30 Jul. 2009. < http://www.nytimes.com/2009/07/31/us/31gitmo.html>50Boumediene v. Bush, 553 U.S. ____ (2008);Hamdan v. Rumsfeld, 126 Sup. Ct. 557 (2006);Hamdi v.

Rumsfeld, 542 U.S. 507 (2004);Rasul v. Bush, 542 U.S. 487-88 (2004)51 Department of Defense. Manual for Military Commissions. United States, 2010.52 Id. at p. II-139.53 10 U.S.C. 948(c)


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of their accusations.

Though military commissions may provide a confident guarantee of our national security,

they do so at costs both to fairness and justice. These are costs we may be willing to bear in the

prosecution of suspected terrorists detained in active zones of combat, for whom conviction and

removal from battle might be impossible with a system any more just or a process any more fair.

As the court in Hamdi reasoned, the United States has strong incentive to convict these detainees

and keep them from returning to the battlefield.54 For such detainees, military commissions

provide a good way to implement as much due process as possible while maintaining our goals

of successful conviction and national security.

This logic does not, however, apply to suspected terrorists apprehended within the United

States. For such suspects, there exists another option for prosecution that can, with proper

implementation, maintain national security while upholding our countrys principles of justice

and fairness.

Legal Analysis: Federal Courts

The United States uses the federal courts to prosecute and sentence those who violate

federal criminal law. Federal law defines international terrorism as, violent acts or acts

dangerous to human life that are a violation of the criminal laws of the United Statesor that

would be a criminal violation if committed within the jurisdiction of the United States.55

The United States outlaws international terrorism in over ninety federal laws.56 These

include laws that prohibit the acts themselves, such as using weapons of mass destruction, 57

bombing public places,58 and hijacking an airline.59 They also include laws that prohibit measures

taken in preparation of these acts, such as receiving military-type training from a foreign

54Hamdi v. Rumsfeld, 542 U.S. 507 (2004) at 51855 18 U.S.C. 2331(1)56 These laws are listed at: Zabel, Richard B and Benjamin Jr., James J. In Pursuit of Justice: Prosecuting

Terrorism Cases in the Federal Courts. Human RightsFirst. May 2008. Pp. 137-141.57 18 U.S.C. 2332a58 18 U.S.C. 2332f59 49 U.S.C. 4602


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terrorist organization;60steps taken to support these acts, such as financing terrorism;61 and

general illegal actions that apply to terrorists, such as homicide62 and treason.63 Such a broad

scope of federal law allows us to prosecute suspected terrorists not only for committing terrorist

acts, but also for supporting them or planning them. Based upon these laws, the jurisdiction of

federal courts certainly extends to suspected terrorists arrested within the United States.

Policy Analysis: Federal Courts

As with an analysis of military commissions, we must also consider to what degree the

processes of the federal courts adhere to the same counterterrorism policy goals listed previously.

Contrary to military commissions, however, federal courts are able to maintain national security

without sacrificing fairness or proper convictions and acquittals.

Proper convictions and acquittals

The United States has been prosecuting modern terrorists since modern terrorism began

with the rise of groups like the Popular Front for the Liberation of Palestine (PFLP) and Black

September in the 1970s, and Hezbollah and Hamas in the 1980s.64 Also in the 1980s, the federal

courts convicted prominent terrorists Mohammed Rashed,65Fawad Yunis,66 and Omar Rezaq67 in

a series of high profile airline hijacking cases. Later after the World Trade Center bombing of

1993, the government continued this trend by prosecuting and convicting 25 terrorists in federal

courts for their roles in the bombings.68 After the 1998 US Embassy bombings in Kenya and

Tanzania, the federal courts prosecuted and convicted five terrorists for their involvement in the

incidents.69

In our more recent post-9/11 conflict, the United States has prosecuted 214 defendants for

60 18 U.S.C. 2339d61 18 U.S.C. 2339c62 18 U.S.C. 233263

18 U.S.C. 2381; The Constitution of the United States, Article 3, Section 364 Id. at pp. 13-14.65United States v. Rashed, No. 87-cr-00308 (D.D.C. July 14, 1987)66United States v. Yunis, No. 87-cr-00377 (D.D.C. Sept. 15, 1987)67United States v. Rezaq, No. 93-cr-00284 (D.D.C. July 15, 1993)68United States v. el-Gabrowny,No. 93-cr-00181 (S.D.N.Y. Nov. 21, 1994)69United States v. el-Hage,No. 1:98-cr-01023-KTD (S.D.N.Y. Sept. 21, 1998). See Judgments as to

Wadih el-Hage (Dkt. No. 637), Khalfan Khamis Mohammed (Dkt. No. 638), Mohamed Rashed Daoudal-Owhali (Dkt. No. 640), and Mohamed Sadeek Odeh (Dkt. No. 641)


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terrorism-related charges prior to June 2, 2009. Of these, 195 were convicted either by verdict or

guilty plea.70 This success rate shows that the federal courts can handle the complexities and

evolving challenges of modern terrorism.

The capability of the federal courts to convict defendants of terrorism is especially true of

suspects detained within the United States. In 2001, British citizen and self-proclaimed al Qaeda

member Richard Reid was arrested at Logan International Airport in Boston for attempting to

detonate explosives on American Airlines flight 63. Although Reid was not a US citizen and

admitted to involvement with al Qaeda and therefore might have been eligible for trial by

military commission, he was tried successfully in a federal court. Reid pled guilty to 9 counts

and was sentenced to 3 consecutive life sentences with no possibility of parole.71 Also in 2001,

Ali Saleh Kahlan al-Marri, citizen of Qatar, was arrested, charged, and pled not guilty to credit

card fraud.72 Al-Marri was then moved into military custody,73and shortly thereafter back to the

federal courts74 where in 2009, he pled guilty and was sentenced to 15 years in prison.75

Later in 2002, US citizen Jose Padilla was arrested at Chicago OHare International

Airport as a material witness. He too was transferred into76 and ultimately back out of military

custody. When he finally faced trial in federal court in 2007, he was convicted for conspiring to

commit terrorism and sentenced to 17 years in prison.77In 2003, naturalized US citizen Iyman

Faris was arrested and charged for his plot to blow up the Brooklyn Bridge. He pled guilty in

federal court and received a 20-year prison sentence.78

These cases illustrate the capacity of the federal courts to achieve convictions not only in

70 Zabel, Richard B and Benjamin Jr., James J. In Pursuit of Justice: Prosecuting Terrorism Cases in the

Federal Courts, 2009 Update and Recent Developments. Human RightsFirst: July 2009. Pp. 5-11.71United States v. Reid, No. 1:02-cr-10013-WGY (D. Mass. Jan. 16, 2002); Elliot, Michael. The Shoe

Bombers World. Time Magazine. 16 Feb 2002.; Younge, Gary and Campbell, Duncan. Shoe-bomber

sentenced to life in prison. The Guardian. 31 Jan 2003.72 Fisher, Louis. The Constitution and 9/11: Recurring Threats to Americas Freedoms. Lawrence,

Kansas: University Press of Kansas: 2008. P. 209.73 Rapp, Jeffrey. Joint Intelligence Taskforce for Combating Terrorism. Classified Declaration of Mr.

Jeffrey N. Rapp. 2:04-cv-02257-HFF-RSC. 5 April 2006.74 Schwartz, John. Accused Qaeda Sleeper Agent in Court. The New York Times. 23 March 2009.75Al-Marri v. Bush, 274 F.Supp.2d 1003, 1004 (C.D. Ill. 2003)76 Mobbs, Michael. Declaration of Michael H. Mobbs, Special Advisory to the Under Secretary of

Defense for Policy. 27 Aug. 2002.77 Semple, Kirk. Padilla Gets 17-Year Term for Role in Conspiracy. New York Times. 23 Jan. 2008.78United States v. Faris, No. 1:03-cr-00189-LMB (E.D. Va. Apr. 30, 2003); KSMs Brooklyn Bridge

Plot. Report #8 in a NEFA series, Target: America, a NEFA analysis of U.S. v. Faris. The NEFAFoundation. August 2007


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terrorism cases generally, but also more specifically in cases involving terrorists detained within

the United States. In fact, there has never been a suspected terrorist apprehended within the

United States who has undergone trial by military commission. UFAs particular case, including

terrorist activities and conditions of arrest, almost directly mirrors that of Richard Reid, who was

charged, prosecuted, and sentenced effectively in federal court. History provides no reason that

our tradition of prosecuting terrorists in federal court should end with Reid.

Fair Processes

Not only are federal courts better able than military commissions to achieve proper

convictions, they also espouse the fair processes which military commissions surrender. In

surrendering these processes and requirements, military commissions lose the value that they

offer in safeguarding against such problems as unnecessary or detrimental trial delays, erroneous

convictions, or violations of the defendants rights. On the contrary, federal courts operate by a

system that finds a way to uphold goals of national security without compromising the rights of

the accused.

Right to a Speedy Trial:

As previously mentioned, the Sixth Amendment together with the Speedy Trial Act of

1974 requires that a defendant be indicted within 30 days of arrest and brought to trial within 70

days of indictment.79Contrary to military commissions, the federal courts embrace the value of

this requirement to preventing unnecessary delays, such as the six-year delay faced by Salim

Ahmed Hamdan or the five-year delays faced by both al Bahlul and David Hicks, even despite

Hickss guilty plea. Such delays are problematic not only to defendants, especially those

ultimately acquitted, but also to the government and the public, whose actions and beliefs

sometimes depend on the results of terrorism hearings.

Critics assert that upholding this right comes at a cost to successful convictions in

terrorism trials, as many terrorism cases require more time for preparation, subpoena of material

and witnesses, and processing of voluminous information. Furthermore, critics point out that this

79 18 U.S.C. 3161


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right could be problematic in trying detainees of the past who have already been in custody for

longer than 100 days.

In spite of complaints, the 2008 Supreme Court decision inBoumediene to extend

constitutional rights to detainees at Guantanamo Bay because Guantanamo is tantamount to

US property suggests that we may have no choice but to extend the constitutional right to a

speedy trial also to terrorists apprehended on US property. Rather than denying this right, we

must find ways to apply it without compromising our other policy goals.

The courts have interpreted the right to a speedy trial to depend on a number of factors,

including the reason for the delay.80 Furthermore, the Speedy Trial Act itself allows for

expansions of the time limit if the case is so unusual or complexthat it is unreasonable to

expect adequate preparationwithin the time limits established.81

Based on these allowances, the courts have fashioned solutions to overcome this

difficulty. In United States v. al-Arian82, for example, the defense motioned to dismiss based on

the speedy trial requirement. The court reasoned that the case was complex and dealt with a

relatively new area of law (terrorism), predicted that it would be faced with novel questions of

fact and law, and acknowledged the sheer magnitude of evidence involved (including over

21,000 hours of phone conversations recorded in Arabic). Based on those observations, the court

had no problem dismissing the motion and the speedy trial requirement with it.

Confrontation Rights:

The Sixth Amendment also provides the right of the accused to confront witnesses

against him. In federal courts, this right is typically manifested as the right to cross-examine

witnesses. The military commission system also provides this right to the accused,83 but the

federal courts have nonetheless been criticized for their failure to balance this right with the goal

of successful convictions in terrorism trials. In particular, critics express concern that certain key

witnesses may not be available for testimony, rendering the government incapable of making a

proper case.

The court again crafted a creative solution to this issue in United States v. Abu Ali84.

80 Barker v. Wingo, 407 U.S. 514 (1972)81 18 U.S.C. 3161(h)(7)(b)(2)82United States v. al-Arian, 329 F. Supp. 2d 1294 (M.D. Fla. Aug. 4, 2004)83 10 U.S.C. 949a(b)(2)(A)84United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008)


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Arrested in Saudi Arabia, Abu Ali gave incriminating evidence and confessions to Saudi

authorities. During trial in federal court, Abu Ali claimed those statements were given under

torture. The court required testimony from the interrogators to validate his claim, but the Saudi

government would not permit their travel to the US and they were outside the subpoena power of

the court. To solve this problem, the court authorized prosecutors, two defense attorneys, and a

translator to travel to Saudi Arabia and interview interrogators over a live two-way video feed.

The feed was broadcast in a US courtroom, where the judge, Abu Ali, and one other defense

attorney were present for cross-examinations. Abu Ali also had a mobile phone link to his

attorneys in Saudi Arabia for private conferences.

The defense may also invoke confrontation rights to gain access to a witness who might

corroborate the defendants claims. Critics attest that this may become problematic in terrorism

cases at times when the government cannot provide access to certain individuals for security

reasons.

This issue surfaced in United States v. Moussaoui.85 In his trial, Moussaoui, charged in

connection to the 9/11 attacks, requested access to several enemy combatants, including Khalid

Sheikh Mohammad and Ramzi Binalshibh,86 who he claimed would deny his involvement in the

attacks.87For security reasons, the government does not want terrorism suspects to have access to

other accused al Qaeda operatives in its custody and therefore did not want to grant Moussaoui

his request. The courts agreed and instead authorized the government to introduce substitute

written testimony from the requested detainees that could adequately encompass any exculpatory

information they might have.88 Solutions such as these have become examples to other courts

needing to fulfill confrontation rights without compromising the courts ability to convict guilty

defendants.

Hearsay:

The Federal Rules of Evidence define hearsay as, a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

85United States v. Moussaoui, No. 1:01-cr-00455-LMB (E.D. Va. Dec. 11, 2001)86 The other names remain classified.87 Hirschkorn, Phil. Moussaoui requests access to al Qaeda captives. CNN Law Center. 24 March

2003.88United States v. Moussaoui, 365 F.3d 292 (4th Cir. 2004)


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matter asserted.89 Hearsay is prohibited from federal courts as part of the rules of procedure90 in

effort to prevent the admission of evidence, the truth of which cannot be corroborated. Military

commissions, on the other hand, allow it.91

Opponents of using the courts to prosecute terrorism believe that hearsay must be

allowed in terrorism trials, since the declarant of the statement may not be available to testify in

court and the only remaining option for admitting the information is hearsay.

However, the Federal Rules of Evidence also provide 33 exceptions to the hearsay rule.92

Rule 804, for example, allows for an exception of the Hearsay rule if the declarant is unavailable,

refuses to testify regarding the statement, or cannot recall the statement. Rule 807 allows for

residual exception by which the judge may make an impromptu exception to the hearsay rule.

Further, the language in the law allows for both the Supreme Court and Congress to create rules

to limit the use of hearsay in certain situations.93

Issues involving the admissibility of hearsay in terrorism trials may also be resolved by

the issuance of substitute information. If the issue in terrorism trials is the unavailability of a

witness to validate certain hearsay testimony, the court could authorize the government to

introduce a substitute written testimony from the hearsay declarant to verify its truth, similar to

the way in which the government used substitute written testimony to satisfy Moussaouis

confrontation rights.

Federal courts have developed such requirements as the right to speedy trial,

confrontation rights, and prohibitions of hearsay in order to ensure a fair process to all involved

parties. Terrorism trials do test these processes, but the federal courts are not machines that

mindlessly apply a pre-written set of rules. Rather, federal courts are controlled by judges and

juries who understand the importance of convicting guilty terrorists and the unique challenges

the courts face in terrorism trials. The courts have proven their ability to develop creative

solutions to upholding these fair processes amidst difficult circumstances and will continue to do

so in the future.

89 Federal Rules of Evidence, Article VIII, Rule 80190 Federal Rules of Evidence, Article VIII, Rule 80291 10 U.S.C. 949a(b)(3)(D)92 Federal Rules of Evidence, Article VIII, Rules 801(d), 803-4, 807.93 Federal Rules of Evidence, Article VIII


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National Security

Whereas military commissions uphold national security goals through the exclusion of

procedural rights, federal courts uphold them through the proper application of those processes.

Just as with military commissions, federal law includes an entire appendix related to the

protection during trial of classified information that, if leaked to terrorists or to the public, could

harm the United States.94

US law enforcement has repeatedly proven its ability to use federal investigations to

uncover complex terrorism networks and plots within the United States. After the 1993 World

Trade Center bombing, for example, an FBI investigation unveiled a terrorist cell operating in

New York and New Jersey, which was planning bombings of the Holland and Lincoln tunnels

and the United Nations building. The FBI later arrested, charged, and convicted thirteen

conspirators of these plans in federal court.95

More recently, the May 4, 2010 arrest and investigation of Faisal Shahzad, who

attempted to detonate explosives in Times Square, has led to the discovery of another web of

US-based terrorists. This network includes some high profile names, including Anwar al-Aulaqi,

who has been linked to a number of other terrorism plots including those of 9/11; Major Nidal

Malik Hassan, arrested for the shootings at Fort Hood; and UFA.

Despite these successes, critics of the federal courts continue to maintain that upholding

in particular discovery and Miranda rights interferes with national security interests.

Discovery Rights:

In terrorism cases, the courts face the challenge of balancing the defendants rights to

confront the evidence and witnesses against them96with the need to protect classified

information that, if disclosed, could impact national security.

Enacted by the Carter administration facing these same problems during the Cold War,97

the Classified Information Procedures Act (CIPA) allows for either party to move for a

94 18 U.S.C. Appendix iii.95 Zabel, Richard B and Benjamin Jr., James J. In Pursuit of Justice: Prosecuting Terrorism Cases in the

Federal Courts. Human RightsFirst. May 2008. P. 15.96Brady v. Maryland, 373 U.S. 83, 87 (1963); The Constitution of the United States, Sixth Amendment.97 Turrin, Serrin and Schulhofer, Stephen J. The Secrecy Problem in Terrorism Trials.Liberty &

National Security Project. Brennan Center for Justice at NYU School of Law: 2005. Pp. 18-19.


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conference to consider the admissibility of classified information.98If the court determines that

the classified materials must be disclosed but pose risk to national security, it can authorize that a

substitute form of the materials be provided.

The court has used CIPA to fashion creative solutions to issues involving disclosure of

sensitive information. For example, in United States v. Abu Ali99, the Fourth Circuit Court of

Appeals upheld the District Courts decision to exclude Abu Ali and his defense attorney (who

did not have security clearance) from discussions about materials protected under CIPA. In

United States v. Rosen,100 the court developed a silent witness rule, which involved the creation

of a series of codes for certain names, people, and other sensitive information that it

determined should not be disclosed to the public. The court provided the judge, jury, counsel,

and witnesses with a key explaining what each code meant, and they were instructed to use

code words for certain names, locations, and other details that the court determined should

remain secret. This key was not provided to the public, so this method allowed the court hearings

to proceed without disclosing compromising information.

Some point out that CIPA does not consider the possibility that a defendant seeks to

exercise his right to self-representation101 at trial. In situations in which it would compromise

national security to disclose certain evidence to the defendant, the court would be forced to make

an impossible decision between maintaining the integrity of secret information and allowing a

fair trial for the defense. While CIPA does not explicitly include a provision for this scenario, the

courts have addressed it. For example, in United States v. Moussaoui102, the court denied

Moussaouis request for self-representation. This exception to the right to self-representation is

grounded in the Sixth Amendment, but this exception to protect classified information has

already been validated by the court and it is therefore likely that other courts will be able to deny

self-representation requests in future terrorism trials on the same basis.

Miranda rights:

By far the more troubling argument raised against the federal courts involves concerns

that reading Miranda rights to a suspect upon arrest might deter that suspect from providing

98 18 U.S.C. app. 399United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008)100United States v. Rosen,No. 05-cr-00225, 2007 WL 3243919101 This right recognized inFaretta v. California, 422 U.S. 806. (1975)102United States v. Moussaoui,No. 1:01-cr-00455-LMB (E.D. Va. Dec. 11, 2001)


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intelligence vital to the security of the United States. But closer analysis of Supreme Court

precedent shows that Miranda rights are not nearly as problematic in maintaining national

security as critics assert.

Established in Miranda v. Arizona,103 Miranda rights are meant to protect suspects against

compulsory self-incrimination. In Michigan v. Tucker,104 however, the Court explained that

Miranda requirements are not themselves constitutional rights, but rather procedural safeguards

for protecting a suspects Fifth Amendment rights. Failure to read Miranda rights is not itself a

violation of the Constitution unless the questioning officer also compelled the suspect to

incriminate himself.105

The Supreme Court later expanded upon this distinction by establishing a more formal

public safety exception to the Miranda requirements that applies in terrorism cases. InNew

York v. Quarles,106 the Court acknowledged that Miranda sometimes sacrifices information that

would be helpful in court for the sake of upholding the defendants rights. According to the

Court, this is not a cost that we can afford to bear when the sacrificed information might help

preserve the public safety.

The FBI has recently begun applying this exception to terrorism investigations. After

UFA was apprehended, the FBI conducted an initial interrogation to gather certain intelligence

before reading him his Miranda rights.107 The FBI has been heavily criticized, though, for the

length and quality of this interrogation. The pre-Miranda questioning lasted approximately fifty

minutes while doctors prepared him for surgery to treat the burns sustained during his failed

attack.108 These criticisms only escalated when UFA stopped providing information once the FBI

read his Miranda rights.109

In fact, the law suggests that the FBI can expand and improve such pre-Miranda

interrogation in accordance with two additional Supreme Court rulings.110 In Missouri v.

103Miranda v. Arizona, 384 U.S. 436, 458 (1966)104Michigan v. Tucker, 417 U.S. 433, 444 (1974)105 Though the burden of proof rests on the prosecution to show that the evidence was not compelled.106New York v. Quarles, 467 U.S. 649 (1984)107 Associated Press. How Abdulmutallab was questioned. MSNBC. 24 Jan. 2010.108 York, Byron. Abdulmutallab interrogated for less than an hour; White House defends handling of

terrorist case. The Washington Examiner. 24 Jan. 2010.109 Id.110Oregon v. Elstad, 470 U.S. 298 (1985); Missouri v. Seibert, 542 U.S. 600 (2004)


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Seibert,111 the Court outlined specific guidelines that would ensure the validity of pre-Miranda

interrogation, midstream Miranda warnings, and post-Miranda questioning. These considerations

include 1) completeness and detail of the questions asked and answers given in the pre-Miranda

interrogation, 2) the degree to which content in each session overlaps, 3) timing and setting, 4)

continuity of police personnel, and 5) the degree to which the interrogators questions treat the

post-Miranda questioning as a continuation of the pre-Miranda interrogation.112

These rulings suggest that law enforcement could actually implement a much lengthier

and more sophisticated pre-Miranda interrogation as long as they adhere to the guidelines given

in Seibert. In particular, the pre- and post-Miranda questionings should be conducted by different

people in different locations, after sufficient time has elapsed. Each questioner should have no

knowledge of the questions asked, information obtained, or strategies employed by the other.

The pre-Miranda questionings could be conducted by the newly created High-Value

Detainee Interrogation Group (HIG), which was created specifically for this purpose.113 The HIG

includes experts from multiple intelligence and law enforcement agencies and so should be able

to leverage the resources of multiple agencies to act quickly on information gleaned during

interrogations.

To maintain integrity of the procedure, the HIG should define a timeline at the beginning

of this phase. Although the suspect does not need to know this timeline, indefinite detentions are

not authorized unless the suspected has lawfully violated the laws of war, so some timeline

should be defined. Timelines as long as several months should be permissible when they are

necessary, so long as a concrete threat to public safety exists and law enforcement deliberately

and explicitly adheres to the guidelines outlined in Siebert. The clear definition of a timeline, the

existence of a public safety threat, and close adherence to the procedures outlined in Siebert

should constitute the due process required by the constitution.

After the HIG finishes gathering the necessary intelligence information, law enforcement

should formally arrest the suspect, read Miranda rights, and initiate normal processes for

collecting testimonial evidence necessary for successful conviction. These processes should take

place at a different location from the HIG interrogations.

Separating intelligence gathering from evidence collection in terrorism trials as proposed

111Missouri v. Seibert, 542 U.S. 600 (2004)112 Id. at 611-612.113 Kombult, Anne E. New Unit to Question Key Terror Suspects. The Washington Post. 24 Aug. 2009.


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here allows unhindered inquiry into national security concerns while upholding a defendants

right against self-incrimination. In this way, this proposed model ensures that Miranda rights do

not come at the cost of information that is necessary for maintaining the safety of the United

States and its citizens, a cost that the Court in Quarles reasonably identified as unacceptable.

In addition to close adherence to the three previously identified goals in our current

conflict with terror, we must ask ourselves if we really want to apply the laws of war inside the

United States as if this were a war zone. Although the AUMF has defined al Qaeda as our enemy

and although al Qaeda members could reside within the United States, our military does not

engage in active battle inside US territory. When suspected al Qaeda supporters are believed towithin the United States, the FBI tracks them down and captures them, not the armed forces. We

would not want our military to target anything inside the United States with drone strikes, as it

may do in the deserts of Afghanistan. These actions would not only cause significant unrest and

disruption to normal life; they would also put our own civilians at continual risk of collateral

damage. In fact, a wealth of law dating back to the Posse Comitatus Act of 1878114 specifically

forbids the use of the military within the United States and forms the basis of the differing

jurisdictions of the FBI and the armed forces.

Finally, we should not underestimate the way federal courts involve the entire country in

the struggle against terrorism. It will require more than military success to win our global fight

against terrorism. Victory in this conflict depends on our ability to leverage all of our countrys

resources against terrorists and in support of American values of justice, freedom, and prosperity.

The strength of its people is and has always been a defining force in American history, and it is

important for us to continue to take advantage of this power in our conflict with terrorism. Trial

by federal court is open to public attendance, and proceedings are broadcast and transparent to

the American people. This allows citizens to participate in the fightto rally behind successful

prosecutions, to become infuriated at occasional setbacks, and ultimately to amplify our

collective voice in rejection of terrorism as a part of our society.

Conclusion

114The Posse Comitatus Act, 20 Stat. 145 (1878).


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Military commissions and federal courts both play important roles in our ongoing conflict

with global terrorism. Although for both legal and policy reasons, federal courts are more

appropriate for prosecuting terrorists apprehended within the United States, military

commissions are more appropriate for prosecuting other categories of detainees, such as those

captured in zones of combat.

We should think of military commissions and federal courts not as forces in constant

opposition, but rather as two separate systems with different jurisdictions. Each has its own

strengths and limitations, and each can inform the other in how to become a more effective

handler of terrorism-related cases.

The situation involving UFA illustrates how US officials are beginning to treat the two

systems in this way. UFAs case is one of very few more recent cases to involve pre-Mirandainterrogations. But with an unnecessarily short interrogation process, the UFA case also

illustrates how much left there is to learn, and in what ways law enforcement can still improve.

Constant learning is not a new feature of either federal courts or military commissions.

Just as military commissions have evolved to include basic safeguards, such as the prohibition of

statements given under torture, the federal courts have evolved creative solutions for balancing

procedural rights with national security concerns. Federal courts have adapted to challenges of

the past, are addressing emerging threats of terrorism in the present, and will continue to solve

new issues in the future. In our global fight against terrorism, we can and must entrust the federal

courts to prosecute terrorists detained within the United States.

Terrorists On Trial

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