In recent years, there has been much debate about the proper forum in which to prosecute suspected terrorists, sparked in large part by the failure of the Guantanamo military commission system to hold terrorism suspects accountable for the most serious crimes. Nearly 800 men have been imprisoned at Guantanamo since 2002. But more than six years later, prosecutors have sought charges against just sixteen men and convicted only one.

Some Guantanamo critics have urged a system of preventive detention without trial and/or the creation of “national security courts” with modified rules of evidence, secrecy and security. Others, however, believe that the existing criminal justice system already provides an effective mechanism for detaining and prosecuting terrorist suspects. This issue is expected to take on increasing significance in the coming months as part of a larger discussion over the future of Guantanamo and following the Supreme Court’s ruling in Boumediene v. Bush, a case on which the Court is expected to rule in June.

A new Human Rights First report, “In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts,” offers an important and much-needed contribution to this debate by examining 123 international terrorism cases prosecuted in the federal system over the past fifteen years, ranging from epic mega-trials for completed acts of terrorism to individual prosecutions focused on prevention. The authors are Rich Zabel and Jim Benjamin, two former federal prosecutors who are now partners at Akin Gump Strauss Hauer & Feld LLP. They base their findings on a close review of motion papers, dockets sheets and judicial opinions as well as interviews with prosecutors, defense attorneys and judges with firsthand terrorism litigation experience.

In Pursuit of Justice analyzes various legal and practical aspects of the federal system that critics have suggested are ill-suited for terrorism cases, including pre-trial detention procedures, rules for protecting classified evidence, the authentication and admissibility of evidence collected abroad, and the mechanisms for ensuring courtroom security. It finds that the most common criticisms of the criminal justice system are unsubstantiated and exaggerated: Federal courts have ample tools for handling terrorism cases without compromising national security or sacrificing rigorous standards of due process.

In Pursuit of Justice contends that departing from the rules that govern ordinary criminal courts only guarantees protracted litigation and unnecessary delays. National security courts do not yet exist, and they would have to be created from scratch. The disarray that plagues the military commission system – with abundant litigation and internal dissension within the military command structure – does not bode well for the creation of other new systems. Federal court judges and practitioners already have specialized expertise with current criminal statutes and procedures, and years of experience guiding terrorism cases through the system.

Going forward, In Pursuit of Justice suggests confident and judicious use of the criminal justice system. At stake is not just the question of how best to handle terrorism cases, but also how to defend the integrity and credibility of the American justice system. –Deborah Colson, Human Rights First.

This entry was posted on Thursday, May 29th, 2008 at 4:22 pm and is filed under Uncategorized .