Workable Terrorism Trials

Sunday, July 27, 2008

ON THE OPPOSITE page today, we publish the views of a federal judge who argues that terrorism cases can and should be handled within the traditional federal trial court system. Advocates of such an approach often point to successful prosecutions of those responsible for the 1993 bombing of the World Trade Center in New York as evidence of the federal court's ability to process such cases in a fair and relatively smooth manner. They cite expansive laws, such as the material-support statute, that apply both to domestic and overseas acts and give law enforcement officers the ability to arrest someone who aids the enemy.

We agree that those terrorism-related cases that can be brought in federal court should be brought in federal court. We also believe that U.S. citizens must be tried in that venue and that enemies captured on the battlefield during conventional conflicts must be held under the terms of the Geneva Conventions.

But modern realities strongly argue against using the federal courts as the exclusive arena to hold or try all terrorism suspects. Most terrorism prosecutions, including the 1993 World Trade Center case, are brought after terrorists have struck. The first priority of a president must be to protect the country from attack. The president must have the legal flexibility to detain those against whom there is credible, actionable intelligence but not enough evidence to bring charges.

Traditional federal court proceedings also present security challenges. Although the most sensitive national security information could be shielded from public consumption through existing laws, the openness of federal court proceedings risks handing unclassified but valuable information to those who would harm this country. The protections afforded to defendants in federal court -- including the right against self-incrimination -- work against legitimate intelligence-gathering interests.

For rare cases involving foreign nationals suspected of terrorist activity, therefore, a specialized national security court would best balance the security needs of the country against the demands of due process. The court would be structured in two parts: one to assess whether government was justified in detaining a suspect, the other to try detainees against whom charges had been filed.

Modeled after the court that processes surveillance warrants under the auspices of the Foreign Intelligence Surveillance Act (FISA), a national security court could be based in Washington and staffed by federal judges from around the country who would sit part-time on the court for a set number of years. Unlike the FISA court, where only the government routinely argues before the panel, a national security court would be fully adversarial. Detainees would be represented by lawyers with security clearance to review classified information being used against their clients. Detainees would have the right to review a broad range of evidence, or at least as extensive a summary of the evidence as was practicable. The defense could present evidence and witnesses to counter government allegations. Judges would conduct periodic reviews to test the government's rationale for continued detentions. Judges would also have the power to order releases that would be coordinated with the White House and State Department to ensure the detainees' transfer to their home countries or to acceptable third countries. Decisions of the national security court would be appealable to a panel of other Senate-confirmed federal judges serving fixed terms.

The separate trial scheme for detainees later charged with crimes should feature slightly more relaxed evidentiary standards than those that prevail in federal court, but there should be robust defenses. It is highly unlikely that national security detainees could be tried in conventional federal court, in part because they would not have been afforded some of the procedural rights guaranteed to conventional defendants, such as the right to remain silent. Yet without a new trial regime under the auspices of a national security court, the government would have a perverse incentive to hold detainees indefinitely without charge. Trials under a national security court would also be heard by a panel of Senate-confirmed federal judges; trial matters could be appealed to a special appellate panel.

The Bush administration committed innumerable sins in denying fundamental rights to many it detained. It brought dishonor to the country, alienated allies and tarnished the tradition of the rule of law. The next president must be held to a higher standard, but he should not be hamstrung in his ability to protect the country because of the profound lapses in judgment of the current administration.

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