By Lloyd George1
The events of September 11, 2001, have invited serious reflection on the way “terrorist” acts are investigated and prosecuted in the United States, and many other countries. September 11th also represents a day in which new vocabularies began to develop in response to changing concepts of crime, war, and terrorism. While combating terrorism is a global interest which justifies the use of international judicial venues, governments also share the responsibility to ensure that their citizens are protected and that those responsible for terrorist attacks are brought to justice. Thus, the domestic courts of many nations are now being faced with the rapid evolution of terrorism law.
In the following paper, it is my intention to address the narrow issue of what judicial venues in the United States may be involved in terrorist prosecution or litigation, and pose certain questions that may be facing such courts.2 In a general manner, I refer separately to military tribunals (which are created and conducted through the military authority to try accused individuals), and civilian courts (which include courts created and conducted through civilian authority to try accused individuals, such as the federal, state and local courts). Hopefully, this treatment will be helpful to representatives of other nations evaluating their countries’ judicial responses to terrorism.
II. Military Tribunals
The attacks of September 11th spawned intense debate over the characterization of such crimes. Because of the nature and severity of the attacks, many officials of the United States have characterized the attacks as acts of war as well as domestic crimes. Indeed, while the issuance of articles of war by the United States Congress is the clearest authority to engage in armed conflict, the Supreme Court and Congress have recognized that a state of war may exist without a formal declaration. During war or in its aftermath, the American government has used military tribunals to try war criminals.
On November 13, 2001, the President of the United States issued an executive order authorizing military tribunals to detain and try certain individuals suspected of committing terrorist acts against the United States. The order applies to non-United States citizens who are members of al Qaeda, are accomplices in acts of international terrorism, and to those who have “harbored” such persons.
The procedures for the conduct of such military tribunals are currently under development by the Department of Defense. On March 21, 2002, the Department of Defense issued its Military Commission Order No. 1, which sets forth the procedures for trials of individuals pursuant to the November 13, 2001, order of the President. Order No. 1 provides that the Secretary of Defense or a designee shall appoint “military commissions” to try individuals subject to the President’s order. The members of the military commissions shall include at least three but not more than seven military officers (and one or two alternate members) who sit in judgment. The prosecutors shall be military officers from the judge advocates of the various branches of the United States Armed Forces, or special trial counsel of the Department of Justice. The defense counsel (known as the “detailed” defense counsel) shall also be military officers from the judge advocates of the armed services. In addition to the detailed defense counsel, the accused may also retain a civilian attorney who, among other qualifications, is a United States citizen, has been admitted to practice law in a state or federal court, has not been the subject of attorney discipline, and is eligible for access to certain classified information.
The accused is afforded rights including the following:
(1) a copy of the charges,
(2) the presumption of innocence,
(3) proof beyond a reasonable doubt for a finding of guilt,
(4) right to counsel,
(5) right to evidence intended to be introduced at trial and any evidence exculpating the accused,
(6) right not to testify during trial, with no adverse inference drawn from the accused’s decision not to testify,
(7) right to testify (which would subject the accused to cross-examination),
(8) right to obtain witnesses and documents for the accused’s defense, subject to a determination of relevance by the presiding officer of the commission,
(9) right to cross-examine witnesses,
(10) right to a trial open to the public (except proceedings closed by the presiding officer).
Evidence is admissible if found by the presiding officer of the commission (or upon request by a commission member, by a majority of the commission) to have probative value to a reasonable person. The presiding officer may consider the safety of witnesses and others as well as the safeguarding of certain information in determining the appropriate means of receiving testimony and evidence. The presiding officer may hear private presentations (in camera) outside of the presence of the defense (ex parte) regarding the protection of persons and information. The presiding officer may delete any information he or she determines should be protected before it is made available to the defense. Any protected information not made available to the accused and defense counsel will be sealed and annexed to the record and made available to reviewing authorities. The presiding officer of the commission may direct the closure of proceedings and exclude the accused, civilian defense counsel, or other persons, but the detailed defense counsel may not be excluded from any trial proceeding.
An affirmative vote of two-thirds of the members of the commission is required for a finding of guilty and imposition of sentence. Only a commission of seven unanimous members may sentence the accused to death. The finding as to the charge and any sentence becomes final upon the final decision by the President of the United States, or if so designated, the Secretary of Defense. If the Secretary of Defense’s designee appointed the commission, a reviewing panel of three military officers selected by the Secretary of Defense (with at least one member having experience as a judge) shall review the record of trial and forward the case to the Secretary of Defense with a recommendation as to the disposition, or return the case to the appointing authority for further proceedings.
The use of military tribunals is not without precedent in the United States. Indeed, there is a body of international norms commonly referred to as the “law of war,” that insists that combatants adhere to certain rules. Among those rules is that combatants not target civilian populations, and that combatants not conceal their weapons or try to pass as non-combatants as they prepare for an attack. Those combatants violating those norms are considered unprivileged combatants and, if captured, are not entitled to prisoner of war status and may be tried for their hostile acts by military tribunals for violations of the law of war.3
In the past, the United States has used military tribunals to prosecute individuals accused of such violations of the law of war, and the Supreme Court of the United States has upheld the government’s right to do so in certain cases. The most notable case in which the use of military tribunals was approved by the Supreme Court is Ex parte Quirin, 317 U.S. 1 (1942). The Quirin case arose out of the surreptitious entry into the United States of eight German saboteurs (one of whom may have possessed U.S. citizenship) bearing explosives and incendiary devices. Acting under instruction from the German High Command, the eight apparently intended to destroy war industries and facilities in the United States. Soon after their arrival and capture, President Roosevelt issued an order authorizing the trial of the saboteurs before a military tribunal. The saboteurs were convicted and eventually executed. The Supreme Court upheld the use of the military tribunals, reasoning that the saboteurs were unlawful combatants who were not entitled to the constitutional guarantees of trial by jury.
The power of the executive branch of the United States to conduct military tribunals during wartime is not unlimited. In Ex parte Milligan, 71 U.S. 2 (1866), the Supreme Court held unconstitutional the trial of a citizen of the State of Indiana by a military commission during the United States Civil War. In the words of the court majority, military jurisdiction “can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed,” unless such citizens are members of the armed forces. This precedent raises the question of whether citizens can be tried by military tribunals if there are civilian courts available.
Certain justifications have been raised in support of the use of military tribunals to try terrorists. The perception among some is that civilian courts are not equipped to deal with the array of international issues that are likely to arise. These issues could include, among others, the admissibility of confessions obtained by agents of foreign governments given that such interrogations often use methods which may not be consistent with the United States constitutional requirements. Other issues involve the disclosure of national-security information to the accused when it potentially jeopardize security or intelligence, and whether open public trials would be used by the accused as an ideological platform. Also, much of the evidence involved in the prosecution of terrorist suspects may be expected to involve second-hand information or hearsay, which is often inadmissible under American evidentiary rules.
There are also practical reasons supporting the use of military tribunals in terrorism. The use of civilian judicial processes has the potential of endangering or intimidating judicial personnel or civilian juries. Supporters of military tribunals also point out that individuals conducting investigations and gathering evidence in a war zone cannot be expected to comply with all of the requirements imposed on law enforcement agencies investigating domestic crimes. Finally, supporters argue that military tribunals may be conducted more expeditiously than civilian jury trials.
III. Civilian Courts
In the United States, the civilian court system offers another venue for litigation involving terrorists. The United States, of course, is not the only country in which a civilian judicial process is being used to investigate and prosecute “terrorist” enterprises. The governments of a number of countries (including Germany, Britain, Spain, France, Italy, Canada, Singapore, Bosnia, Yemen, and Pakistan) have arrested terrorist suspects. Moreover, the United States is working with other countries and international entities in criminal investigations of terrorist suspects and networks.
In the United States, federal courts may have jurisdiction over criminal and civil cases involving terrorism.4 Criminal jurisdiction stems from federal statutes criminalizing offenses against life and property, or specific federal anti-terrorism statutes. In addition, pursuant to statute, certain terrorists may be prosecuted in federal court for war crimes. 18 U.S.C. § 2441.
1. Criminal Trials
Federal courts have been successfully used to try terrorists. Members of al Qaeda have been convicted in federal court in the bombing of the World Trade Center in 1993; in 2001, a federal jury convicted a Tanzanian in the bombing of the American Embassy in Dar es Salaam, and a Saudi in the bombing of the American Embassy in Nairobi, Kenya. In addition, French citizen Zacarias Moussaoui, accused of being one of the intended hijackers in the September 11th attack, is currently being prosecuted in federal court and, if convicted, could face the death penalty under American law. There is a question whether Moussaoui, being a non-citizen, could also have been tried by a military tribunal.5
1. Investigatory and evidentiary reforms
In response to the September 11th attacks, the Congress of the United States enacted, and the President of the United States signed into law the USA Patriot Act of 2001. The Patriot Act is intended to enhance law enforcement’s capability to conduct surveillance, and search for and arrest suspected terrorists in an effort to prevent terrorist acts.6 Because these modifications of law may deal with evidence-gathering and aspects of individual rights, they impact the prosecution of terrorists in the civilian court systems. Some of the major provisions introduced by the Patriot Act are briefly discussed below. Again, it should be emphasized that the constitutionality of the provisions of the Patriot Act have not been fully tested in the courts.
Under previous law, criminal investigators were not able to share with intelligence agencies grand jury information or information used in obtaining judicial approval for intercepting a wire communication (wiretaps). The Patriot Act permits agencies to share information involving foreign intelligence. Such coordination and information-sharing could conceivably involve a myriad of intelligence and law enforcement agencies (at the local, state and national levels), including the Federal Bureau of Investigation (FBI), Customs, the Immigration and Naturalization Service, the Border Patrol, the Postal Service, the Drug Enforcement Administration, the Department of the Treasury, the Coast Guard, the Bureau of Alcohol, Tobacco and Firearms, military branches, and various intelligence services.
Provisions of the Patriot Act also respond to terrorists’ abilities to use modern communications systems, including email, the internet, mobile communications and voice mail. The Patriot Act creates a standard for tracing communications of terrorists over mobile phones, computer networks and other new technology that may develop in the future. In addition, the statute authorizes the issuance of nationwide search warrants and the granting of warrants for surveillance of any phone or computer a suspect is likely to use rather than a specific communication device; increases the duration of surveillance; changes foreign intelligence gathering from the sole or main purpose to a “significant purpose” in applying for electronic surveillance orders or search warrants; and allows for delayed notice of the execution of a warrant if immediate notice has adverse results.
Other elements of the Patriot Act criminalize providing material support for terrorist organizations, and expand the authority of law enforcement to seize terrorist assets in the United States. The Act broadens the Justice Department’s authority to detain non-citizens based on “reasonable grounds to believe” that the individual poses a national security threat, and allows for the prosecution of a defendant who is involved in a transfer of illegal funds in any federal judicial district in which any part of the funds transfer takes place.
One aspect of terrorist prosecution that is attracting attention is the government’s use of so-called “secret evidence.” The Classified Information Procedures Act of 1974 allows prosecutors to introduce classified evidence in such cases. The evidence is submitted to the court, but only a summary of the evidence is given to the accused. Following the 1993 World Trade Center bombing, President Clinton authorized the Immigration and Naturalization Service to detain immigrants on the basis of such classified evidence, and the use of such evidence was codified by the 1996 Anti-Terrorism and Effective Death Penalty Act. Subsequently, several lower courts held that the use of secret evidence in certain cases was unconstitutional. However, following the September 11th attacks there has been renewed interest in the use of secret evidence against accused terrorists, and recently a federal appeals court in Chicago refused to block the government’s use of secret evidence against a Muslim charity suspected of financing terrorism.
Some federal courts have recently ruled against anti-terrorist measures being used by the Justice Department. In New York, a federal district judge recently ruled against the jailing of material witnesses pending grand jury proceedings; a federal appeals court in Ohio refused to block a lower-court order that immigration-violation hearings must be public; and a New Jersey state court ordered local jails to release alleged immigration-violators’ names. The Justice Department is appealing these rulings; however, as the legal boundaries of the war on terrorism are being constantly redefined. The law of terrorism is clearly in a state of flux, and courts are challenged as never before to find order and guidance in the rapidly evolving legal landscape.
2. FISA Court
In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which created a federal court of seven judges from different federal circuits who are appointed by the Chief Justice of the United States Supreme Court. The mandate of the FISA Court is to review applications for search and surveillance warrants. It allows intelligence officials to request warrants without compromising the secrecy of information or individuals. The Court meets twice a month in Washington, D.C., and its proceedings are entirely confidential. With respect to investigating terrorist activities, the Justice Department uses the FISA Court to obtain surveillance warrants for those suspected of potential terrorist involvement. In 1995, President Clinton expanded the FISA Court’s powers by executive order which authorized the court to allow physical searches for the purpose of collecting foreign intelligence information.
2. Civil Judgments
The legal systems of many countries, like that of the United States, often allow for the litigation of rights and wrongs around the globe. Normally, such actions are brought by individuals who have been harmed by the acts of foreign governments or individuals, and seek financial recovery which may be drawn from foreign property held in the country where the case is brought. In the United States, many of these civil cases have involved violations of human rights.
Recently, the trend has been to use civil remedies to compensate victims of terrorism. For instance, in 2000, a federal court in Manhattan ordered Radavan Karadzic, the former Bosnian Serb leader, to pay $4.5 billion in damages to victims of atrocities during the Balkan conflict. Former Yugoslav President Slobodan Milosevic and the Islamic Republic of Iran have been sued by alleged victims of war crimes in this country. And in February 2002, the United States authorized the release of $96.7 million from Cuban assets frozen in the United States to satisfy a judgment awarded to the families of three Miami-based pilots who were shot down by Cuban fighter jets in 1996.
The availability of civil suits to recover monetary damages for acts of terrorism may be subject to treaties and laws that protect foreign governments for lawsuits. However, it is likely that, increasingly, such actions will be pursued in response to terrorism.
The complexities of terrorist cases that many courts may expect to encounter can be illustrated by the criminal case involving John Walker Lindh, labeled by the media as the American-Taliban. Lindh was captured in Mazar-e-Sharif, Afghanistan, after a prison uprising in which a CIA agent was killed. He is now in custody in the United States on a federal indictment charging him with conspiring to murder Americans, providing support and services to foreign terrorist organizations, including al-Qaeda, and using firearms and destructive devices during crimes of violence. District Judge T.S. Ellis, III, is presiding over the case and is currently attempting to balance Lindh’s constitutional rights to confront the witnesses against him with protecting the government’s interests in safeguarding both the security of its intelligence personnel and the integrity of the detainee system in Cuba.
Lindh’s lawyers claim that there are certain detainees at the American lockup at Guantanamo Bay whose interviews with authorities specifically refer to Lindh, or provide exculpatory information. The defense team wants to interview these detainees to determine the substance of their testimony and to prepare for a hearing regarding whether such testimony should be admissible at trial in August. However, the Justice Department’s position is that Lindh’s lawyers cannot be permitted to interview the detained witnesses because of the significant security interests at stake, and to avoid impeding the Defense Department’s ability to handle the captured combatants in its custody. The Justice Department proposes that Lindh’s attorneys be permitted to submit written questions to the detainees, the written answers to which would be returned to the defense team. The defense lawyers, not surprisingly, oppose this plan because it would give no opportunity to discover unanticipated exculpatory testimony, and there would be no way to determine whether the witnesses understand the questions.
How Judge Ellis answers the numerous questions that have arisen and that will arise within the ever-shifting framework of terrorism law is the sort of environment that many courts of national venue can be expected to face. However, the discussion of the issues and procedures, and the sharing of information and experiences (as is being done in this very program) is a good first step in providing the courts sound direction for the future.
2 While legislatures in many of the state and local governments of the United States have initiated terrorism-related measures, this paper will focus predominantly on the federal and military court venues in the United States.
3 Article 75 of Protocol I to the 1949 Geneva Convention requires that unprivileged combatants be accorded trials by impartial and regularly constituted courts that, at a minimum, afford the presumption of innocence, the right to counsel before and during trial, the right of defendants to call witnesses and to examine witnesses against them, freedom from ex post fact laws, and the right of defendants not to testify against themselves or to confess their guilt. The United States, however, has not ratified the Protocol.
4 State courts may also have jurisdiction in cases involving violation of a state’s criminal laws. At this time, however, most terrorism cases have been prosecuted in the federal courts.
5 Acts that could be considered domestic terrorism have also been prosecuted in federal court. For instance, Timothy McVeigh was convicted in federal court and executed for his role in the bombing of the Oklahoma City federal building.
6 Many of the new powers granted to law enforcement agencies will “sunset,” or expire, after a certain amount of time.