Columbia International Affairs Online: Working Papers

CIAO DATE: 04/2010

In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts — 2009 Update and Recent Developments

Richard B. Zabel, James J. Benjamin

July 2009

Human Rights First


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.