Terrorism Trials: An Overview.

Introduction

Throughout its history, the United States has administered two general types of criminal justice. Domestically, it has processed criminals in its superior court system, giving them protection under the constitution, as well as state and federal laws, while prosecuting them for their crimes. However, in situations in which military personnel are taken prisoner in combat situations, these individuals are prosecuted under a military tribunal system, which has fewer constitutional and legal protections for those suspects. Traditionally, these two systems have been clearly defined with respect to one another.

The events of September 11, 2001, however, blurred this line. Terrorists do not necessarily represent a country and are not captured on the battlefield. They work in clandestine fashion, in other countries as well as within the United States. After 9/11, the federal government determined that it could prosecute terrorists as enemy combatants and therefore try them in military court. Prosecuting terrorists who are captured both in the United States and abroad has given rise to a significant debate that encompasses civil and human rights, constitutionality, and national security.

Understanding the Discussion

Al-Qaeda: International terrorism network accused of conducting a number of attacks on the United States and its citizens abroad.

Combatant: Individual who, acting on behalf of a nation or group, takes part in attacks against another nation or group.

Military Tribunal: Court proceeding that is administered by a military organization rather than a civilian legal system.

History

Throughout history, societies, nations, and nation-states alike have created legal systems designed to prosecute criminals. Even the most primitive cultures established systems by which those who threatened their stability and leaders would be prosecuted. Such prosecutorial systems existed for the purposes of punishing criminal activity conducted by those who were subject to the law.

In situations of international war and conflict, however, the applicability of such laws became somewhat blurred. Combat forces that meet on a battlefield are operating under the orders of their respective nations or nation-states. If they are captured during the course of the conflict, they would not necessarily consider themselves responsible to the civilian law of their enemy.

It was not until the reign of Swedish King Gustavus Adolphus, who directly commanded his military forces during the Thirty Years War of the early to mid-seventeenth century that greater distinction was given to the capture, detention, and prosecution of enemy combatants. During that conflict, Adolphus instituted the use of a panel of military officers to listen to complaints of violations of war against captured enemy soldiers and leaders (Lacey 2002). The British Empire duplicated this system shortly thereafter, and by virtue of British rule, so too did the American colonies.

During their fight for independence from the English crown, American colonists and the British alike would use military tribunals against suspected spies from their respective enemies. Americans brought military charges against a British spy, Major John Andre, while British authorities tried Captain Nathan Hale in a military tribunal of their own. Although under these circumstances, it was clear that the individuals being tried were prosecuted as enemy combatants within the tribunal, the definition of a military tribunal and to what type of prisoner it would apply would be nebulous.

Over the course of the centuries that followed American independence, the military tribunal system would continue to lack clarity in terms of its applications. In the 1818 conflict with the Creek Indians, Americans captured two British subjects and tried them in this setting. During the Mexican-American conflict between 1846 and 1848, American troops themselves were tried in military tribunals for perceived brutality toward Mexican citizens. During the Civil War, any individuals captured supporting the Confederacy were made subject to such prosecutions, as were conspirators involved in the 1865 assassination of President Abraham Lincoln.

The diverse use of military tribunals during the early years of the United States as well as during the nineteenth century was marked by a common thread. According to one expert, the frequent use of military tribunals marked a significant shift away from the federalist ideals upon which the American system of government was built. Historian Louis Fisher argues that the American legal system was borne of checks and balances, wherein the executive and legislative branches would have input into one another’s endeavors, while the Judiciary would ensure that any laws or policy decisions made would be subject to the US Constitution. Tribunals, Fisher commented, moved away from checks and balances and gave the president concentrated military power that could not be questioned by the other branches (Cutler 2006).

The use of military tribunals would continue in the twentieth century, particularly during and immediately following World War II. The most prominent of these commissions was the International Military Tribunal (IMT), which opened in 1942 in Nuremberg, Germany. Twenty-four members of Nazi Germany’s leadership were tried during this event, each representing a section of the Nazi regime. Adolph Hitler, Joseph Goebbels, and Heinrich Himmler were included, although they had each committed suicide prior to the end of the war and did not stand trial. Of those who did appear at Nuremberg, twelve were sentenced to death, three were sentenced to life in prison, and four received ten to twenty years in prison. Only three were acquitted (US Holocaust Memorial Museum 2010).

In each of these cases, tribunals were convened to prosecute agents of national enemies. By the 1980s, however, a new enemy of the state arose. Until then, acts of international terrorism against the United States were sporadic and not a matter of concern (CQ Researcher 2010). In 1983, a suicide bomber attacked a Marine barracks in Beirut, Lebanon. Two hundred and forty-one Marines and American service members, who were in Beirut on a peacekeeping mission, lost their lives in the attack. Islamic Jihad claimed responsibility for the attack, which was considered the first shot in a new war between the United States and international terrorists (Sampson 2008).

In the early 1990s, one terrorist group emerged as the most significant international threat to the United States. Al-Qaeda, a worldwide network of terrorists led allegedly by Osama bin Laden, launched its first attack on American interests in Somalia in 1992. In 1993, terrorism arrived for the first time inside the United States, with Islamic fundamentalists attacking the World Trade Center in New York, killing six and wounding 1,500 (although al-Qaeda’s involvement is still debated, the CIA later learned of a connection between the suspects who were captured thereafter and the terrorist network). Over the course of the 1990s, al-Qaeda waged numerous attacks against the United States and its allies in the Middle East, Africa, and East Asia. The start of the twenty-first century saw a continuation of al-Qaeda’s efforts, beginning in 2000, when operatives staged an attack on the USS Cole in Yemen, killing seventeen (Windrem 2010).

On September 11, 2001, al-Qaeda succeeded in its most devastating attack on the United States. Hijacking four airliners, operatives slammed two into the World Trade Center and one into the Pentagon in Washington, DC. The fourth plane was retaken by passengers before it crashed in rural Pennsylvania. More than three thousand people lost their lives in the attacks. The US government, led by President George W. Bush, immediately declared a “war on terrorism,” vowing to pursue bin Laden and al-Qaeda to their destruction and proceeding to capture suspects both in the country and abroad.

President Bush, however, understood that the US civilian court system had rigorous civil rights protections that could allow for these suspects to be freed—in many cases, suspects were not advised of their right against self-recrimination during their confessions, and in others, evidence obtained during capture might have been denied in court. Fearful that they might be forced to release high-value suspects under legal technicalities, President Bush declared that any individuals captured as part of the war on terror were considered “enemy combatants.” Under this definition, the United States was able to hold them indefinitely, without communication with legal counsel or others, without protections under the Geneva Conventions, and without legal protections against torture and/or cruel or inhumane treatment (Martin and Onek 2004). Hundreds of suspects were detained, most of whom were placed in a modified detention center in Guantanamo Bay, Cuba. Only thirteen of those detainees have to date been referred to military tribunal—the rest remain in custody.

Terrorism Trials Today

When President Barack Obama took office in 2009, he vowed to close the Guantanamo Bay facility and give detainees a fair trial and legal protections. Although his administration has not yet carried out the closure of “Gitmo,” President Obama has openly discussed handing suspects over to civilian courts, including those in New York City, the site of the most casualties of the 9/11 attacks. This effort has touched off a nationwide debate that focuses on weighing national security, human rights, justice, and the American legal system.

President Obama won his election on a campaign pledging reform. Regarding the treatment of terror suspects, he vowed to try them in criminal courts rather than through the secretive military tribunal. In 2009 (a mere five months after he took office), however, human and civil rights groups expressed outrage when the White House announced that some of the suspects would still be prosecuted in military court (James 2009). The sharp response from interest groups to President Obama’s reversal serves as an illustration of the oft-contentious issue surrounding the trials of terror suspects. Indeed, the plight and rights of these individuals have touched off a polarized debate that has gained international attention.

On one end of the debate are those who believe that a suspect, no matter how heinous the crime of which he or she is charged with committing, should be provided the legal resources to defend against the charges. Furthermore, these parties assert, the means by which the suspects’ crimes are revealed (such as brutal interrogations in secretive locations) call into question the reliability of their “confessions.” Additionally, many argue that the lack of legal protections and humane treatment paid to these individuals undermines American credibility abroad and injures the nation’s image as a moral and ethical protector of human rights around the globe (Roach 2008). In any event, proponents of civil court trials cite the fact that, since September 11, more than three hundred people have been convicted of terror-related charges in civilian court, while only three military tribunals have taken place (Goodman 2010).

On the other side of the issue are those who believe that the nation should be allowed to use every resource at its disposal to protect against the continuing threat of international terrorism. Since military tribunals have been used throughout US history and international history, these parties claim, such proceedings are well within the government’s rights as prosecutors. Furthermore, advocates of military terrorism trials assert that terrorists do not adhere to the policies of the Geneva Conventions, the standard by which nations are expected to conduct themselves in times of war. The brutality demonstrated by groups like al-Qaeda (such as targeting civilians) supports the idea that these groups do not deserve a light hand. Finally, some leaders believe that the capture of a terror suspect yields great potential intelligence, and that this information may only be uncovered by using more unconventional means, of which military intelligence officers are capable (Destefano 2009).

The issue at hand has been compounded by some political maneuvering that began taking shape between 2009 and 2010. Two days after taking office, President Obama signed an order reversing course on the Bush administration’s policies, including shutting down Guantánamo Bay. However, because of questions about where to house the two hundred suspects currently imprisoned there as well as how to try them, the president has had to hold off on his reforms. Some advocates of the military system have shown willingness to allow the closure of Guantánamo Bay, but only if the president shows similar flexibility on the military tribunal question.

Other leaders have filed legislation that would prevent certain high-profile terror suspects, such as suspected 9/11 mastermind Khalid Sheikh Mohammed, from trial in a New York civil court (Yost 2010). The president and his administration have asked, however, that leaders refrain from placing restrictions on their ability to prosecute terrorists and safeguard the country from future attacks. Khalid Sheikh Mohammed, along with four others accused of being involved in the 9/11 terrorist attacks, was arraigned on war crimes at Guantánamo Bay in May 2012. In an attempt to be protected by rights guaranteed under the Geneva Convention, Mohammed, the suspected mastermind behind 9/11, wore a camouflaged vest to the court proceedings. In its prosecution of Mohammed, the United States was attempting to label Mohammed as a terrorist, not a soldier. Mohammed wore the vest to support his claim of being a soldier and, therefore, be protected by the Geneva Convention—avoiding the possibility of the death penalty. Despite this attempt, Mohammed faces the death penalty for his crimes of terrorism, conspiracy, and 2,976 counts of murder.

Criticism of the military tribunal system of Guantánamo Bay continued to mount after several pretrial hearings for Mohammed and the four other co-conspirators were cancelled, further drawing out the trial process. In August 2015, the military judge cancelled the pretrial hearing set for between August 24 and September 4 because of a lingering, unresolved conflict-of-interest claim argued by the defense counsel. The year before, defense attorneys had raised the concern that the Federal Bureau of Investigation had been spying on them. As of November, no new date had been set for the hearings.

These essays and any opinions, information or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Information Services.

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