The Magazine

Due Process for Terrorists?

From the January 12, 2004 issue: The case for a federal terrorism court.

Jan 12, 2004, Vol. 9, No. 17 • By THOMAS F. POWERS
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The government must undertake a systematic sorting out of these and other similar legal issues. Too often, its response to the new challenges has seemed haphazard and inconsistent. U.S. citizen John Walker Lindh, captured in Afghanistan, was allowed to plead guilty to criminal charges with a lawyer at his side in a federal court, while citizen Yaser Hamdi, captured in similar circumstances, sits in a Navy brig with no sign of any day in court, whether civilian or military. Even more striking, while noncitizen Zacarias Moussaoui (the "twentieth hijacker" arrested in Minnesota before 9/11) has succeeded in turning his federal criminal trial into a three-ring due-process circus, citizen Padilla (arrested, like Moussaoui, on U.S. soil) shares the hapless fate of Hamdi.

In a parallel development, the irregular legal status of the prisoners at Guantanamo Bay arises from our inability to apply ordinary rules--in this case the rules of war--to the special requirements of fighting terrorism. The "prisoner of war" designation is denied al Qaeda and Taliban fighters captured in Afghanistan, partly because they did not meet the usual requirements for that status of fighting in uniform and operating within the regular military structure of a recognized country. But their terrorism affiliation also changes the interest our government takes in them. There is a good case to be made for asking members of a clandestine terrorist organization to divulge more than their name, rank, and serial number--all that may be asked of POWs. There is a need to detain such individuals as long as they are fairly deemed to pose a security risk (analogous to the situation of POWs)--but in the new context of a conflict without a clear beginning and whose end is likely to be just as murky (by contrast with POWs).

As a result of such difficulties, the government has designated citizen detainees Hamdi and Padilla on the one hand and the non-citizens at Guantanamo on the other as "enemy combatants." But this term, originating in Ex parte Quirin, a 1942 Supreme Court decision upholding the use of military tribunals to try Nazi saboteurs captured on U.S. soil, is not defined in that opinion, in statements by the administration, or in recent court rulings. Nor does it figure in U.S. statutes. Equally troubling, the term is ambiguous in its relation to the traditional and essentially unquestioned distinction in international law between lawful and unlawful combatants. One knows what to do with individuals in these two categories: hold the former in POW camps, and try the latter before some sort of war crimes tribunal. The enemy combatant designation, while it fills a legitimate need in the current context, exists in a legal limbo where no court, civil or military, has clear jurisdiction, and thus opens the door to valid concern about due process.

INSTITUTIONAL REFORMS are needed to resolve these questions and signal clearly to Americans and a watching world that due process, even for terror suspects, matters to our government. Extraordinary measures presented as matters of executive authority, or justified in the name of security, have been tolerable during a period of adaptation to the new era, but they will fail in the long run. Leaving it to the Supreme Court to force the government to act, meanwhile, is a poor substitute for a forward-looking and forthright effort to face our unprecedented situation squarely and in a way consistent with the principles of the U.S. Constitution.

To deal with terrorism cases that could be handled under the ordinary criminal law (as were, for example, the 1993 World Trade Center bombing, the Oklahoma City federal building bombing, and the case of Zacarias Moussaoui), Congress should create a new specialized court. This terrorism court would incorporate special security measures, protect the secrecy of sensitive information and sources, and make provision in its evidentiary rules for the peculiar situations arising from operations on a battlefield or its equivalent. Terror suspects should know the charges against them, have access to attorneys (specially trained, with the proper security clearances), and enjoy a right of appeal. To ensure independence from executive branch influence, federal judges with lifetime appointments should fill the bench. A terrorism court would provide a framework for the emergence of a body of precedent and the development of a cadre of specially trained expert judges and lawyers. There is some precedent for a roughly similar arrangement in the U.S. Foreign Intelligence Surveillance Court, created in 1978 and expanded under the Patriot Act. Experience in European countries (especially France, Germany, and Great Britain) in processing terrorism suspects in civilian courts also provides useful points of reference.