New Report Offers Roadmap for Handling Complex Terrorism Cases

As the Obama Administration and Congress grapple with issues stemming from the impending closure of the U.S. detention facility at Guantanamo Bay and consider how to deliver justice in complex terrorism cases, America's federal court system holds many of the solutions the nation's leaders seek, according to a new report by two former federal prosecutors.

In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Court -2009 Update and Recent Developments challenges the arguments of those who favor new, untested legal regimes for terrorism suspects such as "national security courts," or administrative detention without trial by presenting a comprehensive, fact-based assessment of the capability of federal courts to handle terrorism cases. Written by former federal prosecutors Richard B. Zabel and James J. Benjamin, Jr.--now partners at Akin Gump Strauss Hauer & Feld LLP-- the report issued today by Human Rights First is the most thorough examination to date of federal terrorism cases brought against those who are associated--organizationally, financially, or ideologically--with Islamist extremist terrorist groups like al Qaeda.

"Since the late 1980s, federal courts have handled approximately 135 real-life terrorism prosecutions. In preparing the 2009 update to In Pursuit of Justice, our goal was to present updated, current data about these cases along with recent developments and perspectives ," said Benjamin. "The 2009 Report confirms our conclusion that the federal courts have a proven track record of serving as an effective and credible system for prosecuting and incapacitating terrorists."

"At a time when polemic continues to impede the national conversation about the government's response to terrorism, this report builds on the enormous achievement of its landmark predecessor, In Pursuit of Justice, by methodically presenting fresh empirical evidence of the ability of federal courts to meet the challenges of adjudicating these cases in the criminal justice system under our existing legal framework," said David H. Laufman, Partner, Kelley Drye & Warren LLP, and former Assistant U.S. Attorney for the Eastern District of Virginia.

The reportoffers an exhaustive analysis of federal terrorism prosecutions and relevant federal laws through May 2009. These cases range from epic mega-trials, including those involving the first attack on the World Trade Center (1993) and the East African embassy bombings (1998), to individual, pre-emptive prosecutions focused on prevention. The 2009 Report presents statistical data on 119 international terrorism cases filed since 9/11 in which a total of 289 defendants were charged in the criminal justice system. Of the 214 defendants whose cases were resolved as of June 2, 2009, 195 were convicted either by verdict or by a guilty plea. This is a conviction rate of 91.121%, a slight increase over the 90.625% conviction rate reported in May of 2008.

"This update vindicates the original report's conclusion that the criminal justice system continues successfully to surmount a wide array of novel dilemmas presented by these difficult cases within the parameters of time-honored rules for fair and efficient trials," said Judge Patricia Wald, former Chief Judge, U.S. Court of Appeals for the D.C. Circuit. "The proven success of the efforts by the federal courts compares favorably with the rocky course alternative systems such as the military commissions have taken and the formidable conceptual and practical problems that would be posed by dramatic departures such as the establishment of a preventive detention scheme."

Using numerous case-specific examples, the report finds that existing laws cover a broad spectrum of terrorism-related crimes and, in the vast majority of known cases, provide an effective basis for detaining, monitoring, and prosecuting suspects. Among the key findings of the 2009 Report are:

• The statutes available to the Department of Justice for the prosecution of suspected terrorists continue to be deployed forcefully, fairly, and with just results, including the material support statutes as well as a recently-enacted statute aimed at narco-terrorists.

• Courts continue to authorize the detention of terrorism suspects under established criminal and immigration law authority and, now through the time-tested common law system, are delimiting the scope of military detention to meet the demands of the current circumstances.

• The Classified Information Procedures Act (CIPA), although subject to being improved, is working as it should: we were unable to identify a single instance in which CIPA was invoked and there was a substantial leak of sensitive information as a result of a terrorism prosecution in federal court.

• The Miranda requirement is not preventing intelligence professionals from interrogating prisoners, and recent court decisions have not interpreted Miranda, even in the context of foreign law enforcement interrogations, as a bar to criminal prosecution.

• Prosecutors are able to make use of a wide array of evidence to establish their cases.

• Convicted terrorists continue to receive stiff sentences.

• The Federal Bureau of Prisons has been detaining accused and convicted hardened terrorists in U.S. prisons on a continuous basis since at least the early 1990's without harm to the surrounding communities.

All told, the report concludes that the evolution of statutes, courtroom procedures, and efforts to balance security issues with the rights of the parties reveals a challenged but flexible justice system, one that is capable of bringing terrorists to justice through procedures that are fair, and are seen to be fair, while protecting vital national security interests.

"The civilian criminal justice system is of course not, by itself, 'the answer' to our nation's challenge in confronting terrorism, but it is a critical component of a multi-pronged strategy that must marshal the resources of our military, intelligence and diplomatic capabilities as well," said Zabel.

"Politicians have spent eight years trying to reinvent the wheel when it comes to prosecuting terrorism and that approach has failed miserably. This report makes clear that the best way forward is to rely on our existing legal system. Its track record of successfully prosecuting criminals, safeguarding national security, and addressing the complex legal issues of our time is unmatched.," said Elisa Massimino.