2009 / 68 pp.
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“Since its publication last year, In Pursuit of Justice has become a kind of Bible in the escalating debate over whether our 200-year-old system of justice can withstand the challenge of trying accused 21st-century global terrorists charged with killing Americans at home and abroad. 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. 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.”
— Patricia M. Wald, Former Chief Judge, U.S. Court of Appeals for the D.C. Circuit
“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. It thus makes another exemplary contribution to the ongoing examination of the government’s options for bringing accused terrorists to justice while remaining true to the rule of law and our core values as a society.”
— David H. Laufman, Partner, Kelley Drye & Warren LLP, and former Assistant U.S. Attorney for the Eastern District of Virginia
FROM THE AUTHORS
As the United States strives for a vigorous and effective response to radical Islamist terrorism around the globe, our country remains embroiled in an important and difficult national debate over when and how to detain and prosecute suspected terrorists. As part of this debate, some have argued for the creation of new, untested legal regimes to preventively detain and/or prosecute persons suspected of complicity in terrorism. However, often missing from the discussion is the fact that the federal courts are continuing to build on their proven track record of serving as an effective and fair tool for incapacitating terrorists.
We have updated our May 2008 report, In Pursuit of Justice, to include cases and developments from the past year. Our research shows a conviction rate of more than 91% since September 11, 2001 and many notable successes in a wide variety of terrorism prosecutions. This update examines recent developments in statutes used to prosecute terrorists in federal court, evolving case law clarifying the scope of the government’s military detention authority, the application of legal rules to protect classified information, and developments on other issues such as the Miranda rule, evidentiary issues, sentencing, and safety and security within the federal prison system.
The creation of a brand-new court system or preventive detention scheme from scratch would be expensive, uncertain, and almost certainly controversial. In contrast, while they are not perfect, the federal courts are a fit and flexible resource that should be used along with other government resources—including military force, intelligence gathering, diplomatic efforts, and cultural and economic initiatives—as an important part of a multi-pronged counterterrorism strategy.
Richard B. Zabel
James J. Benjamin, Jr.