How to Try a Terrorist

Judge Coughenour nails it. We should be trying terrorists in criminal court instead of in extra-legal proceedings.

In 2001, I presided over the trial of Ahmed Ressam, the confessed Algerian terrorist, for his role in a plot to bomb Los Angeles International Airport. That experience only strengthened my conviction that American courts, guided by the principles of our Constitution, are fully capable of trying suspected terrorists.

As evidence of “the inadequacy of the current approach to terrorism prosecutions,” Judge Mukasey noted that there have been only about three dozen convictions in spite of Al Qaeda’s growing threat. Open prosecutions, he argued, potentially disclose to our enemies methods and sources of intelligence-gathering. Our Constitution does not adequately protect society from “people who have cosmic goals that they are intent on achieving by cataclysmic means,” he wrote.

It is regrettable that so often when our courts are evaluated for their ability to handle terrorism cases, the Constitution is conceived as mere solicitude for criminals. Implicit in this misguided notion is that society’s somehow charitable view toward “ordinary” crimes of murder or rape ought not to extend to terrorists. In fact, the criminal procedure required under our Constitution reflects the reality that law enforcement is not perfect, and that questions of guilt necessarily precede questions of mercy.

Read it all.

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7 comments for “How to Try a Terrorist

  1. Hawise
    November 1, 2007 at 7:00 pm

    People who do terrorist acts are criminals, they should be treated as such. We actually have a fairly efficient, in place system for dealing with criminals. What makes people think that creating a new ‘different’ system was such an all fired great idea? If I have an egg that needs to be fried, I get my frying pan and I don’t spend six years and trillions of dollars inventing a new pan.

  2. Bitter Scribe
    November 1, 2007 at 7:41 pm

    Of all the ridiculous, fatheaded, utterly asinine notions that conversatives have put forth with regard to terrorism, nothing grates on me more than their implication that treating terrorists like criminals is somehow wimpy or unmanly.

    I’m talking about pronouncements like, “If Al Gore had been president, he would have taken out an arrest warrant for Osama bin Laden!” Like that was the most farfetched thing they could imagine.

    I suppose puffing out your chest while saying you want bin Laden “dead or alive,” and then forgetting all about him while you proceed to get us bogged down in a pointless war, meets their definition of manhood better. God, why does anyone listen to these people?

  3. November 1, 2007 at 9:17 pm

    We in the UK have already had to deal with this, and constantly the right-wing conservative press are claiming that our already woefully inadequate “Human Rights Act” should be rescinded entirely, because they claim that all it does is give rights to criminals (actually, it gives rights to people accused of being criminals, to ensure that the innocent are not so easy to lock up, and to prevent Europe from slipping back into Fascism and Nazism – the HRA basically making the European Convention on Human Rights a part of British law).

    At times like these, when human rights are seen merely as an inconvenience to be bypassed, such considerations are perhaps more important than ever. Progressives in the UK admire you in the US for your written constitution that can be appealed to the highest court in the land, over our largely unwritten constitution, that can’t be appealed to anywhere. If even the US Constitution is under threat from the same claims that beset the UK justice system, then perhaps the whole world should be afraid.

  4. MathInLA
    November 1, 2007 at 11:48 pm

    I think that Mukasey should not be under any circumstances confirmed, and I’m unsure that any attorney general that Bush could bring himself to propose should be, either. With the hemming and hawing about what is torture and the terrifying idea that the President is above the law seeming to be a requirement for it, it strikes me at this point that we might be better off with a hampered DoJ than one with a leader willing to condone and assist in reprehensible, criminal behavior.

  5. November 2, 2007 at 5:04 am


    Brit’s have one recourse Americans (and other non-Europeans) don’t have: the ability to take a case to the European Court of Human Rights if all else fails. Yeah, I know taking a case to the ECtHR is a long and tremendously involved process that individuals must rely on NGOs to assist them in, but it’s still a possibility. Americans do have the Inter-American Court, but the US Government considers it a joke at best. Sometimes I daydream about the Organization of American States becoming more like the Council of Europe. Then I wake up and read the latest news of Bush Admin criminality. Sigh.

  6. Tom
    November 3, 2007 at 11:24 pm

    Two issues come to mind with regards to treating terrorism as just another “criminal” matter (this should not be taken as an endorsement of one view or the other):
    1) Our criminal justice system, as constructed, implicitly accepts that there will be a significant amount of crime that simply escapes punishment or deterrent. The rule is that it is better for ‘ten guilty to go free than one innocent to be punished.’ In so far as regular criminal activity goes, we accept this tradeoff. The costs of extending this logic to terrorism, in which hundreds or thousands of lives may be at risk, makes that a different question, whose tradeoffs need to be examined separately.
    2) It’s unreasonable not to expect that routinely trying terror cases in the mainline justice system won’t have an impact on the justice system in other cases. It’s already happened, with PATRIOT Act rules and procedure being used in non-terror cases. The War on Drugs is illustrative, as would be the War on the Mafia, as these introduced problematic and controversial new trends in the criminal justice system, such as the routine use of criminal informants; civil asset forfeiture; “sting” operations; the effective end to any sort of banking privacy; the federalization of many charges (with draconian sentencing guidelines and no parole) and other disquieting changes. Bringing terror cases regularly into the justice system will likely accelerate this trend.

    Finally, it should also be noted that as regards comparisons to other countries, many avenues are possible in Europe and the UK in criminal investigations, such as preventative detention for up to a month or warrantless searches and wiretaps, that are illegal or at least Constitutionally questionable and highly controversial, in the US system. A direct comparison can’t really be made.

  7. Hawise
    November 5, 2007 at 1:41 pm

    My problem with treating criminals involved in terror tactics as a special class of person is that essentially they are just thugs with a hyperactive agenda. Hundreds of lives are at risk when companies don’t adhere to standards to make a quick buck, do we create a new system to deal with that? Thousands of lives can be put at risk by a handful of thugs with knife cutters as was proven by 9-11. What makes one group of thugs so special that they get to throw the whole government into upheaval and put the Constitution at risk? They want to be special snowflakes, don’t give them that.

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