Terrorists On Trial

Military Commissions and Federal Courts

Carissa M. Mueller
Duke University
May 8, 2010
 Terrorists On Trial 2

Introduction

On December 26, 2009, “Christmas Day bomber” Umar Farouk Abdulmuttalab (UFA)
was arrested at Detroit Metropolitan Airport and later indicted on six counts, including attempted
murder, bringing an explosive on an aircraft, and use of a weapon of mass destruction.1 His
processing through the criminal justice system generated complaints, the most concerning of
which that he stopped providing valuable intelligence once he was read his Miranda rights.
Critics of Attorney General Holder’s handling of the UFA situation argue that UFA should
instead have been detained as an unprivileged enemy belligerent, interrogated under military
custody, and charged accordingly in a military commission.2
This situation raises the more general question of how to prosecute suspected terrorists
who are apprehended within the United States. Many argue that they have violated federal
criminal law and should therefore be charged and prosecuted in federal court. Others argue that
they have violated the laws of war and should be detained as unprivileged enemy belligerents—
prosecuted, if appropriate, through a military commission.
UFA is not the first to raise such a question. In 2001, suspected terrorist Ali Saleh Kahlah
al-Marri was arrested at his home in Peoria, Illinois. Originally charged in federal court with
credit card fraud and other criminal offenses, al-Marri was transferred to military custody and
later back to the criminal justice system.3 Similarly in 2002, suspected terrorist Jose Padilla was
arrested at Chicago O’Hare International Airport, transferred to military custody, and ultimately
sent back to the criminal justice system for trial.4
While each of these situations has raised the question of how to prosecute suspected
terrorists detained within the United States, the debate has focused predominantly on broad
weaknesses of the opposing system. Proponents of prosecuting by federal court criticize military
commissions for offering a sub-standard, biased form of justice. Opponents criticize the
procedures required by the criminal justice system as antithetical to our national security goals.

1
Indictment, United States v. Umar Farouk Abdulmutallab, No. 2:10-cr-20005.
2
Lieberman, Joseph I. and Collins, Susan M. Letter to AG Holder, Eric H. Jr. and Brennan, John O. 25
January 2010.
3
Fisher, Louis. The Constitution and 9/11: Recurring Threats to America’s Freedoms. Lawrence, Kansas:
University Press of Kansas: 2008. Pp 209-10.
4
Id. at 197-209.
 Terrorists On Trial 3

Critics on both sides of the argument often fail to acknowledge that the military commission and
federal courts are different systems, each appropriate in different scenarios. This paper
specifically considers scenarios involving suspected terrorists who are arrested or detained on
United States territory, as was the case with al-Marri, Padilla, and UFA.
In our ongoing conflict with international terrorists that is sure to outlast the physical
battles in Iraq and Afghanistan, situations similar to those of UFA, al-Marri, and Padilla are
likely to surface again. Indeed, on May 4, 2010, Faisal Shahzad was arrested by the United States
in connection with the failed Times Square bombing attempt of May 1, 2010.5 As such, it is
important to develop a model for prosecuting suspected terrorists apprehended within the United
States that is both grounded in legal precedent and that effectively accomplishes our policy
goals. In this paper, I analyze both the military commission and federal court systems as applied
in situations involving suspects who are detained within the United States. I will show that based
on this contextual analysis, suspected terrorists detained within the United States, such as UFA,
should be prosecuted in federal courts, not in military commissions. I further propose a model to
govern the law enforcement process that accounts for the apparent weaknesses of the criminal
justice system and ensures that prosecuting by federal court remains in line with our policy
objectives.

Legal Analysis: Military Commissions

Before evaluating the suitability of military commissions to prosecute UFA and others in
his position, we must determine whether prosecution by military commission is even an option
made available by the law. The use, jurisdiction, and process of the current military commission
system are governed by the 2009 Military Commissions Act. Though the current system was put
into place recently, we can trace the use of military commissions back to General George
Washington, who appointed a “Board of General Officers” in 1780 to try suspected British spy
John André.6 Before dissecting the current law, it is helpful to understand the more recent
developments that have shaped the law into its current form.

Recent History

5
Mazzetti, Mark; Tavernise, Sabrina; and Healy, Jack. “Suspect, Charged, Said to Admit Role in Plot.”
The New York Times. 4 May 2010.
6
Id. at 173.
 Terrorists On Trial 4

Two months after the 9/11 attacks, President Bush issued an Executive Order authorizing
the use of military tribunals to try any individual who the President determined is or was a
member of al Qaeda, or who had engaged, supported, or conspired to commit acts of
international terrorism.7 Since then, the Supreme Court, Executive, and Congress have all played
active roles in shaping this original military tribunal authorization into the military commission
system used today.
In Rasul v. Bush, the Supreme Court expressed concerns with the military tribunals the
President had authorized because of a lack of “any legal proceeding”8 to determine and review
the detainees’ detention status. In response, the Executive created the Combatant Status Review
Tribunal (CSRT) to provide such a hearing for each detainee. A CSRT includes a panel of three
military officers and determines whether each detainee was properly designated as an enemy
combatant9 and therefore eligible by the Executive Order to be tried by a military tribunal.10
One of the CSRT reviews and eventual military tribunal hearings involved the case of
Salim Ahmed Hamdan, whose case ultimately ended up in the Supreme Court. In Hamdan v.
Rumsfeld, the Supreme Court found no law, including Article II of the US Constitution, which
authorized the President to create any type of military tribunal he desired. In the absence of such
law, statutory authorization by Congress was needed in order to create a military commission
system to try enemy combatants. According to the Court, neither the Detainee Treatment Act of
2005 nor the Authorization for Use of Military Force (AUMF) constituted such Congressional
authorization.11 Therefore, the structure and procedures of the Executive’s military tribunal
system of the time were invalid.12
In response to the Hamdan ruling, Congress passed the Military Commissions Act of
2006, which provided statutory authorization for the use of military commissions to try unlawful
enemy combatants. Congress has since replaced the Military Commissions Act of 2006 with the

7
Detention, Treatment, and Trial of Certain Non-Citizens in the War on Terrorism. 13 Nov. 2001, 66
Fed. Reg. 57, 833.
8
Rasul v. Bush, 542 U.S. 487-88 (2004).
9
“Enemy combatant” was the preferred phrase at the time to refer to enemy terrorists who had violated
the laws of war. Since then, the Obama Administration has replaced this with the phrase “unprivileged
enemy belligerent”.
10
Department of Defense, New Transcript, “Defense Department Background Briefing on the Combatant
Status Review Tribunal,” July 7, 2004.
11
Hamdan v. Rumsfeld, 126 Sup. Ct. 557 (2006) at 2749-75
12
Id. at 2786
 Terrorists On Trial 5

Military Commissions Act of 2009. This current version of the law includes additional
procedural safeguards supported by the Obama Administration. It is this Military Commissions
Act of 2009 that governs the system presently and thus that guides a subsequent analysis of the
legal jurisdiction and framework of the military commission system.

Current Legal Framework

Statutory law grants military commissions jurisdiction over anyone who is 1) an alien,
and 2) an unprivileged enemy belligerent.13 On the first requirement, the statute defines an alien
as any non-citizen.14 Thus, only suspected terrorists who are not citizens of the United States may
even be considered for prosecution by military commissions.
The Supreme Court has upheld this requirement repeatedly. During the Civil War,
President Lincoln established a military commission to try US citizens suspected of aiding the
Confederacy. In Ex Parte Milligan, the Supreme Court denied his attempts, ruling that citizens
must be prosecuted through civilian court, so long as they are open and functioning.15 During
World War II, President Roosevelt declared a state of martial law in Hawaii, fearing that the
Hawaiian population (1/3 of which was Japanese) would provide cover for a Japanese invasion
of the United States through Hawaii. Authorities then replaced civilian courts with military
commissions. In Duncan v. Kahanamoka, the Supreme Court ruled this attempt invalid—US
citizens may not be tried in military commissions, even during military emergency.16 As a citizen
of Nigeria and not of the United States, UFA fits this first criterion. Faisal Shahzad, on the other
hand, is a citizen of the United States. In his case, prosecution by military commission is not a
legally available option.
On the second requirement, the law defines “unprivileged enemy belligerent” as any
individual other than a privileged belligerent that has (1) engaged in hostilities against the US or
its partners, (2) purposefully and materially supported hostilities against the US or its partners,
OR (3) was a part of al Qaeda at the time of the alleged offense.17
Thus, the enemy must first not fall under the category of a “privileged belligerent.” The
law distinguishes privileged belligerence from unprivileged belligerence based on adherence to
13
10 U.S.C. 948(c)
14
10 U.S.C. 948(a)(1)
15
Ex Parte Milligan, 71 U.S. 2 (1866)
16
Duncan v. Kahanamoka, 327 U.S. 304 (1946)
17
10 U.S.C. 948(a)(7)
 Terrorists On Trial 6

one of the eight categories enumerated in Article 4 of the Geneva Convention relative to
treatment as a prisoner of war.18 Since members of al Qaeda do not adhere to any one of these
eight categories19, they are not considered privileged belligerents.20
Less clear is the application of the enumerated points of classification. The first two
points concern participation in “hostilities,” but the scope of “hostilities” is not defined. While I
will not debate that soldiers captured in an active war zone have participated in hostilities against
the United States,21 UFA was not captured on the physical battlefield. Rather, he was detained at
an airport inside the United States. The law does not clearly define how far removed from the
battlefield an unprivileged enemy belligerent may be apprehended and still be subject to full
military custody and proceedings.
The Supreme Court in Ex Parte Qurin suggests that location of capture is not particularly
relevant in such determination. In Quirin, the Supreme Court upheld the jurisdiction of the
military commission system over eight Nazi saboteurs captured within the United States.22
However, the government has encountered some difficulty in applying the Quirin precedent to al
Qaeda members. In al-Marri v. Bush, for example, the district court considered whether al-Marri,
a legal US resident alien, could be detained and held as an enemy combatant given that he was
arrested within the United States. The district court upheld the validity of his detention.23 On
appeal, the Fourth Circuit reversed, ruling that a person who is lawfully inside the United States
and who takes action to harm the United States is “subject to charge, trial, and punishment by
civilian court, not to seizure and detention by military authority.”24
In the similar case of US citizen Jose Padilla, the district court found in favor of Padilla,

18
10 U.S.C. 948(6)
19
For an in-depth explanation justifying the determination of al Qaeda members as illegal combatants as
opposed to legal combatants, refer to Aldrich, George H. “The Taliban, al Qaeda, and the Determination
of Illegal Combatants.” American Journal of International Law, Vol. 96 no. 4 (Oct. 2002) pp. 891-898.
20
Privileged belligerents instead fall under the jurisdiction of courts-martial.
21
See Hamdi v. Rumsfeld, 542 U.S. 507 (2004) for a more detailed explanation of why battlefield
captures fall under jurisdiction of military commissions.
22
Ex Parte Quirin, 317 U.S. 1 (1942)
23
al-Marri v. Bush, 274 F. Supp. 2d 1003-2003 (C.D. Ill. 2003).
24
al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007) at 186; al-Marri v. Pucciarelli, No. 2:04-cv-002257-
HFF (D.S.C., Jul. 15, 2008); Sherman, Mark and Barret, Devlin. “Ali al-Marri, Alleged Al-Qaida Agent,
Indicted in Illinois Federal Court”. The Huffington Post. 27 February 2009. Although the Fourth Circuit
decision was reversed en banc, the case was appealed to the Supreme Court; before the Supreme Court
heard the case, the government transferred Padilla to federal court. Many legal reviews suggest that if the
Supreme Court had heard this case, they would have mandated al-Marri’s transfer to the federal courts.
 Terrorists On Trial 7

ruling that he had been unlawfully detained as an enemy combatant.25 Upon appeal, however, the
Fourth Circuit reversed, finding his detention authorized. Padilla nonetheless appealed to the
Supreme Court, claiming that he could not be considered an unprivileged enemy belligerent
because he was not arrested on a foreign battlefield, but rather within the United States.26 Before
the Supreme Court could review this case, the US Government transferred Padilla to civilian
court. Both Padilla and al-Marri were tried in federal court, convicted, and punished for their
crimes. Thus, we cannot say for certain how the Supreme Court would have ruled regarding the
legality of their detention. More importantly, we do not know what the Supreme Court might
have said regarding their participation in hostilities against the United States and thus their
classification as unprivileged enemy belligerents, given their capture within the United States.
In 2008, however, the Supreme Court extended the constitutional right to habeas corpus
to detainees at Guantanamo Bay, finding that Guantanamo Bay was “tantamount” to US
property.27 Although this case dealt specifically with the issue of detention, it extended
constitutional rights to detainees on the simple basis that they were held in an area “tantamount”
to US property. This suggests that those apprehended on US property would also have
constitutional rights, regardless of their citizenship status. Such rights include the right to a trial
by jury and other procedural safeguards not guaranteed by the Military Commission Act of 2009.
Taken together, these case decisions might suggest that the law does not consider those
captured within the United States eligible for military commission hearings, but instead requires
that they be prosecuted in federal court. Thus the legal jurisdiction of military commissions
would not extend to UFA, Shahzad, and others who are detained within the United States.
Finally, we must consider the third point of classification: whether a suspected terrorist
was a part of al Qaeda at the time of the alleged offense. 28 The application of this point is again
unclear. Making a distinction between members and non-members may be sufficient for
traditional armies, but al Qaeda is not a traditional army. Al Qaeda does not associate with a
particular state. Its organizational membership spans governments and nations, not excluding our
own. The organization includes both active and inactive members, some of whose only
connection to the organization may be self-proclaimed sympathy to the cause.
25
Padilla ex re. Newman v. Rumsfeld, 243 F.Supp.2d 42 (S.D.N.Y. 2003)
26
Petition for Writ of Habeas Corpus, June 30, 2004. Joint Appendix, Padilla v. Hanft, No. 05-6396 (4th
Cir. 2004), at 7.
27
Boumediene v. Bush, 553 U.S. ____ (2008).
28
10 U.S.C. 948a(7).
 Terrorists On Trial 8

The courts have provided some clarity regarding this definition in several habeas corpus
cases wherein the court considered whether military detention was lawful. While this is a
different question from who may be prosecuted by military commission, in the process of
reviewing lawful detention, the courts are forced to consider the definition of al Qaeda
membership, which is relevant to this discussion.
The Supreme Court in Hamdi, for example, recognized the difficulty with defining an al
Qaeda member and explained that the lower courts would have to further define the “permissible
bounds of the category” as subsequent cases are presented to them.29 Since then, they have begun
to do so. In Gherebi v. Obama, the DC District Court narrowed the distinction to those who
“receive and execute” orders from al Qaeda’s command structure.30 “Sympathizers,
propagandists, and financiers” are thus excluded from the definition.31 Although this case has
also not been considered on appeal, the narrowest definition of an unprivileged enemy
belligerent could be therefore said to include battlefield captures and those who participate in the
command structure of al Qaeda. In the case of UFA, news broadcasts report that UFA trained
with al Qaeda in Yemen, was sent by al Qaeda to detonate an explosive in the United States, and
that other operatives in Yemen are being trained for similar missions.32 On this basis, UFA might
be considered an al Qaeda member, but without a formal court ruling, we cannot be sure.
Furthermore, because each of the points of classification explained above is so
contextual, the government must prove the defendant’s adherence to each point before
continuing with a military commission hearing to determine guilt or innocence. For example,
although UFA does meet the non-citizenship requirement, it would be more difficult to argue
during trial that he falls under the category of “unprivileged enemy belligerent”. In a military
commission hearing, the government would first need to make the case that UFA is an
unprivileged enemy belligerent before arguing his involvement in terrorist activities. Most
importantly, even if UFA does meet the definition of an unprivileged enemy belligerent, not all
suspected terrorists apprehended within the United States will. Thus this process must be
repeated each time the government wants to try a suspected terrorist by military commission. As
subsequent policy analyses on both military commissions and federal courts will show, this extra
29
Id. at 2642
30
Gherebi v. Obama, 609 F. Supp. 2d at 68 (D.D.C. 2009)
31
Id.
32
Whittell, Giles. “I’m the first of many, warns airline ‘bomber’ Umar Farouk Abdulmutallab”. The
Times. 29 December 2009.
 Terrorists On Trial 9

burden of proof on the government is unnecessary when the federal court system can adhere
equally well, if not better, to our country’s counterterrorism policy priorities.

Policy Analysis: Military Commissions

Even if the law would allow us to use military commissions to prosecute UFA and others
like him, we must still consider whether we should use them to prosecute suspected terrorists
detained within the United States. The system we use to prosecute these detainees must not only
fall within our legal boundaries, but also must adhere to our country’s policy goals in our conflict
with terrorism.
Though one might reasonably identify countless goals associated with prosecuting
suspected terrorists, three of the more established and overarching goals include keeping our
country safe, maintaining fair processes, and convicting those who are guilty and acquitting
those wrongly accused.

National Security

I list this goal first because it irrefutably constitutes the most important goal in our overall
conflict: keeping our country safe from violence is the very reason we engaged in hostilities in
the first place. Preserving our national security means not only capturing known terrorists and
removing them from the battlefield, but also preventing attacks planned for the future from
materializing. To do this, we must identify those who might be involved in planning future
attacks and extract information from them regarding the details of their plans.
Military commissions explicitly exclude all requirements for a speedy trial,33 leaving no
question that interrogators can take all the time that they need to gather intelligence before
sending a detainee to trial by military commission. Further, military commissions exclude all
protections offered to the accused against compulsory self-incrimination in federal courts.34
Consequently, confessions that an interrogator obtains during questioning using coercion would
be admissible in a military commission, so long as the coercion does not involve “cruel,
inhuman, or degrading treatment”,35 which would amount to torture.
The system we choose to prosecute terrorists must not only allow for the collection and
33
10 U.S.C. 948b(d)(A)
34
The Constitution of the United States, Amendment 5
35
This is prohibited by 10 U.S.C. 948r.
 Terrorists On Trial 10

use of such sensitive intelligence information; it must also keep this information secret from
other terrorists who might use it to further harm the United States. Military commissions provide
for this in an entire subchapter related to the protection of classified information36 and also allow
for the judge to close trials to the general public.37 These two allowances guarantee that
information sensitive to national security will not be leaked to any members of the public,
including other terrorists.

Fair Process

These provisions and subchapters may uphold our goals of national security, but they do
so at a cost to fair process. The updated Military Commissions Act of 2009 lessened the severity
of these costs by formalizing processes better than they had been in the past. The present system,
for example, prohibits statements made under torture38—statements which were admissible in the
past. It also gives the defendant a much more legitimate opportunity to obtain evidence and
witnesses39 than was available in the past and includes a provision for capital offenses,40 which
had previously been absent.
Despite these improvements, the procedural standards in military commissions remain
sub-standard even as compared to their counterpart in the military court system, courts-martial.
The courts-martial system is the more permanent and longstanding system of military justice,
used to try privileged enemy belligerents and members of our own armed forces for alleged
crimes. Courts-martial have been fashioned over the years to mimic as closely as possible the
procedural rules required in federal court. For example, in federal courts, the 6th Amendment
together with the Speedy Trial Act of 1974 requires that a defendant be indicted within 30 days
of arrest and brought to trial within 70 days of indictment.41 Courts-martial have relaxed this
right significantly, but still instruct that “immediate steps shall be taken” to initiate proceedings.42
By including this provision, the courts-martial system at least acknowledges the importance of
preventing unnecessary delays in trial and of resolving criminal cases in a timely fashion. On the
36
10 U.S.C. 949 p-1, p-7
37
10 U.S.C. 949d(c)
38
10 U.S.C. 949s
39
10 U.S.C. 949j
40
10 U.S.C. 949a(2)(c)(ii)
41
18 U.S.C. 3161
42
UCMJ Sec. 810, Art. 10.
 Terrorists On Trial 11

contrary, the provisions governing military commissions bluntly refuse to apply this goal to
terrorism prosecutions, listing the right to a speedy trial along with four others as standards that
“shall not apply to trial by military commission.”43
Another example of unfair processes includes the lack of evidentiary rights, the most
problematic of which has been limited and unenforceable discovery rights. The military
commission hearing of Salim Ahmed Hamdan illustrates the severity of this problem: Hamdan
faced trial by military commission for material support to terrorism. During trial, the defense
requested and the government was ordered to provide all records relating to his confinement.
However, the prosecution did not provide any such documents until 9 days before the trial,
submitting over 600 pages of detention records to the defense. At 9:15 PM the night before the
trial, the government submitted another 500 pages, and submitted additional documents while the
trial was already underway.44 Some might use this example to illustrate that the military
commission system does in fact have discovery rights in place. However, that the trial was
permitted to proceed given that the defense received such a magnitude of evidence so close to the
trial date also illustrates the unenforceability of those standards.
Many would argue that terrorists do not deserve protection under such rules of procedure,
but detention does not guarantee guilt. Both federal courts and courts-martial pay close attention
to maintaining fair processes because the United States has repeatedly recognized fair processes
as a necessary safeguard to erroneous convictions of innocent people. A lack of fairness in court
proceedings contributes to the difficulty military commissions experience in achieving proper
convictions and acquittals.

Proper convictions and acquittals

In our ongoing conflict with international terrorists, it is important to bring to justice in

some form those who have taken actions to harm the United States. Despite their capacity to
uphold national security goals, military commissions have also simply not proven effective in
convicting terrorists. Since 2001, they have only secured convictions in 3 cases, the first of
which involved David Hicks, an Australian who pled guilty to one count of material support and

43
10 U.S.C. 948b(d)
44
Sullivan, Stacy. “Guilty in Guantanamo”. Human Rights Watch. 7 August 2008.
<http://www.hrw.org/legacy/english/docs/2008/08/07/usint19560.htm>
 Terrorists On Trial 12

served a nine-month sentence at home in Australia.45 The second involved Salim Ahmed
Hamdan, who was captured in Afghanistan and sentenced to five and a half years in prison for
material support charges. Because by that point his proceedings had already outlasted his
sentence, he was released to his home country of Yemen to serve a one-month prison term.46 The
third involved Ali Hamza Ahmed Sulayman al Bahlul, who was sentenced to life in prison after
boycotting proceedings and refusing to participate in any part of his trial.47 None of these three
cases involves a suspected terrorists detained anywhere within the United States.
Even more troubling than the inability of military commissions to secure convictions is
their inability to acquit and release those innocent of their accused crimes. Especially in the
course of this current conflict involving prevention, we are sure to inadvertently apprehend some
who truly have not committed any wrongdoing. The system we use to prosecute suspected
terrorists must recognize this possibility and prove capable of acquitting those who have done no
wrong. Further, the system must be willing to release those it finds innocent from improper
detention.
The current military commission system is unable to do either of these things. The closest
military commissions have come to acquitting someone in our current conflict with terror was in
the case of Mohammad Jawad, a Guantanamo detainee believed to have been around 14 or 15
years of age at the time of his apprehension.48 Jawad was not actually acquitted, but rather filed
petition for habeas corpus in federal court, which resulted in a district judge’s ruling that he was
improperly detained, ending his military commission hearing.
Even if a military commission were to find a suspect not guilty of his crimes, there is no
45
United States Department of Defense. “Hicks Court Motions”. 2 Dec. 2004.
<http://www.defense.gov/news/Dec2004/commissions_motions_hicks.html>; Human Rights First. “The
Case of David Hicks, Australia.” < http://www.humanrightsfirst.org/us_law/detainees/cases/hicks.aspx>
46
United States Department of Defense. “Hamdan Court Motions”. 3 Dec. 2004.
<http://www.defense.gov/news/Dec2004/commissions_motions_hamdan.html>; Human Rights First.
“The Case of Salim Ahmed Hamdan, Yemen.” <
http://www.humanrightsfirst.org/us_law/detainees/cases/hamdan.aspx>
47
United States Department of Defense. “Al Bahlul Court Motions”. 2 Dec. 2004.
<http://www.defense.gov/news/Dec2004/commissions_motions_albahlul.html>; Human Rights First.
“The Case of Ali Hamza Ahmed Sulayman al Bahlul, Yemen”.
<http://www.humanrightsfirst.org/us_law/detainees/cases/bahlul.aspx>
48
Reports of his age vary depending on the party making the claim. See also:
“Mohammad Jawad”. The New York Times. 29 Jul. 2009.
<http://topics.nytimes.com/topics/reference/timestopics/people/j/mohammed_jawad/index.html>; Human
Rights First. “The Case of Mohammad Jawad, Afghanistan.”
<http://www.humanrightsfirst.org/us_law/detainees/cases/jawad.aspx>
 Terrorists On Trial 13

guarantee that the defendant would then be released from custody. In fact, the only defendant in
a military commission released from custody was Jawad, and Jawad was released by a federal
district judge who after hearing his habeas case ordered his release, stating that “[e]nough has
been imposed on this young man to date.”49
As the Supreme Court iterated numerous times50, the government derives its authority to
detain unprivileged enemy belligerents from the Authorization for Use of Military Force and the
general concepts of law of war. The laws governing the military commission procedures, namely
the Military Commissions Act of 2009, are separate from the laws authorizing detention.
Therefore, the government’s ability to prosecute a defendant in military commission is not
directly related to its ability to detain that suspect in military custody. Even if a commission were
to acquit a defendant, the government would still have legal grounds for detention and nothing
compels them to release those whom the courts find have not committed any wrongdoing.
The Military Commissions Act of 2009 fails to provide any statutory instruction for the
release of those acquitted of their charges. In fact, the Department of Defense recently released a
manual detailing the rules used in military commissions.51 This manual goes even further to
explicitly assert that, “even in the face of an acquittal, continued detention may be authorized”.52
Though the military commission system purports to “try alien unprivileged enemy
belligerents for violations of the law of war and other offenses”,53 without the power to reach
acquittals and affect the release of those it acquits, this system is incapable of maintaining any
sense of justice. That the government may use continued detention as a backstop to unsuccessful
trials begs the question, why do military commissions exist at all when their determinations have
no bearing on who we detain as our enemy? Whichever system we develop to prosecute
suspected terrorists should not be just a show of due process, but rather a true arbiter of justice
that we entrust to determine who has acted against the United States and who has not. The
system we construct should empower us to take appropriate retributive action only against the
people who have taken action against the United States and not those who were found innocent

49
Glaberson, William. "Judge Orders Guantánamo Detainee to be Freed”, quoting District Judge Ellen
Segal Huvelle. 30 Jul. 2009. < http://www.nytimes.com/2009/07/31/us/31gitmo.html>
50
Boumediene v. Bush, 553 U.S. ____ (2008); Hamdan v. Rumsfeld, 126 Sup. Ct. 557 (2006); Hamdi v.
Rumsfeld, 542 U.S. 507 (2004); Rasul v. Bush, 542 U.S. 487-88 (2004)
51
Department of Defense. Manual for Military Commissions. United States, 2010.
52
Id. at p. II-139.
53
10 U.S.C. 948(c)
 Terrorists On Trial 14

of their accusations.

Though military commissions may provide a confident guarantee of our national security,
they do so at costs both to fairness and justice. These are costs we may be willing to bear in the
prosecution of suspected terrorists detained in active zones of combat, for whom conviction and
removal from battle might be impossible with a system any more just or a process any more fair.
As the court in Hamdi reasoned, the United States has strong incentive to convict these detainees
and keep them from returning to the battlefield.54 For such detainees, military commissions
provide a good way to implement as much due process as possible while maintaining our goals
of successful conviction and national security.
This logic does not, however, apply to suspected terrorists apprehended within the United
States. For such suspects, there exists another option for prosecution that can, with proper
implementation, maintain national security while upholding our country’s principles of justice
and fairness.

Legal Analysis: Federal Courts

The United States uses the federal courts to prosecute and sentence those who violate
federal criminal law. Federal law defines international terrorism as, “violent acts or acts
dangerous to human life that are a violation of the criminal laws of the United States…or that
would be a criminal violation if committed within the jurisdiction of the United States.”55
The United States outlaws international terrorism in over ninety federal laws.56 These
include laws that prohibit the acts themselves, such as using weapons of mass destruction,57
bombing public places,58 and hijacking an airline.59 They also include laws that prohibit measures
taken in preparation of these acts, such as receiving “military-type” training from a foreign

54
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) at 518
55
18 U.S.C. 2331(1)
56
These laws are listed at: Zabel, Richard B and Benjamin Jr., James J. “In Pursuit of Justice: Prosecuting
Terrorism Cases in the Federal Courts.” Human Rights First. May 2008. Pp. 137-141.
57
18 U.S.C. 2332a
58
18 U.S.C. 2332f
59
49 U.S.C. 4602
 Terrorists On Trial 15

terrorist organization;60 steps taken to support these acts, such as financing terrorism;61 and
general illegal actions that apply to terrorists, such as homicide62 and treason.63 Such a broad
scope of federal law allows us to prosecute suspected terrorists not only for committing terrorist
acts, but also for supporting them or planning them. Based upon these laws, the jurisdiction of
federal courts certainly extends to suspected terrorists arrested within the United States.

Policy Analysis: Federal Courts

As with an analysis of military commissions, we must also consider to what degree the
processes of the federal courts adhere to the same counterterrorism policy goals listed previously.
Contrary to military commissions, however, federal courts are able to maintain national security
without sacrificing fairness or proper convictions and acquittals.

Proper convictions and acquittals

The United States has been prosecuting modern terrorists since modern terrorism began
with the rise of groups like the Popular Front for the Liberation of Palestine (“PFLP”) and Black
September in the 1970s, and Hezbollah and Hamas in the 1980s.64 Also in the 1980s, the federal
courts convicted prominent terrorists Mohammed Rashed,65 Fawad Yunis,66 and Omar Rezaq67 in
a series of high profile airline hijacking cases. Later after the World Trade Center bombing of
1993, the government continued this trend by prosecuting and convicting 25 terrorists in federal
courts for their roles in the bombings.68 After the 1998 US Embassy bombings in Kenya and
Tanzania, the federal courts prosecuted and convicted five terrorists for their involvement in the
incidents.69
In our more recent post-9/11 conflict, the United States has prosecuted 214 defendants for

60
18 U.S.C. 2339d
61
18 U.S.C. 2339c
62
18 U.S.C. 2332
63
18 U.S.C. 2381; The Constitution of the United States, Article 3, Section 3
64
Id. at pp. 13-14.
65
United States v. Rashed, No. 87-cr-00308 (D.D.C. July 14, 1987)
66
United States v. Yunis, No. 87-cr-00377 (D.D.C. Sept. 15, 1987)
67
United States v. Rezaq, No. 93-cr-00284 (D.D.C. July 15, 1993)
68
United States v. el-Gabrowny, No. 93-cr-00181 (S.D.N.Y. Nov. 21, 1994)
69
United States v. el-Hage, No. 1:98-cr-01023-KTD (S.D.N.Y. Sept. 21, 1998). See Judgments as to
Wadih el-Hage (Dkt. No. 637), Khalfan Khamis Mohammed (Dkt. No. 638), Mohamed Rashed Daoud
al-‘Owhali (Dkt. No. 640), and Mohamed Sadeek Odeh (Dkt. No. 641)
 Terrorists On Trial 16

terrorism-related charges prior to June 2, 2009. Of these, 195 were convicted either by verdict or
guilty plea.70 This success rate shows that the federal courts can handle the complexities and
evolving challenges of modern terrorism.
The capability of the federal courts to convict defendants of terrorism is especially true of
suspects detained within the United States. In 2001, British citizen and self-proclaimed al Qaeda
member Richard Reid was arrested at Logan International Airport in Boston for attempting to
detonate explosives on American Airlines flight 63. Although Reid was not a US citizen and
admitted to involvement with al Qaeda and therefore might have been eligible for trial by
military commission, he was tried successfully in a federal court. Reid pled guilty to 9 counts
and was sentenced to 3 consecutive life sentences with no possibility of parole.71 Also in 2001,
Ali Saleh Kahlan al-Marri, citizen of Qatar, was arrested, charged, and pled not guilty to credit
card fraud.72 Al-Marri was then moved into military custody,73 and shortly thereafter back to the
federal courts74 where in 2009, he pled guilty and was sentenced to 15 years in prison.75
Later in 2002, US citizen Jose Padilla was arrested at Chicago O’Hare International
Airport as a material witness. He too was transferred into76 and ultimately back out of military
custody. When he finally faced trial in federal court in 2007, he was convicted for conspiring to
commit terrorism and sentenced to 17 years in prison.77 In 2003, naturalized US citizen Iyman
Faris was arrested and charged for his plot to blow up the Brooklyn Bridge. He pled guilty in
federal court and received a 20-year prison sentence.78
These cases illustrate the capacity of the federal courts to achieve convictions not only in

70
Zabel, Richard B and Benjamin Jr., James J. “In Pursuit of Justice: Prosecuting Terrorism Cases in the
Federal Courts, 2009 Update and Recent Developments.” Human Rights First: July 2009. Pp. 5-11.
71
United States v. Reid, No. 1:02-cr-10013-WGY (D. Mass. Jan. 16, 2002); Elliot, Michael. “The Shoe
Bomber’s World”. Time Magazine. 16 Feb 2002.; Younge, Gary and Campbell, Duncan. “Shoe-bomber
sentenced to life in prison”. The Guardian. 31 Jan 2003.
72
Fisher, Louis. The Constitution and 9/11: Recurring Threats to America’s Freedoms. Lawrence,
Kansas: University Press of Kansas: 2008. P. 209.
73
Rapp, Jeffrey. Joint Intelligence Taskforce for Combating Terrorism. “Classified Declaration of Mr.
Jeffrey N. Rapp”. 2:04-cv-02257-HFF-RSC. 5 April 2006.
74
Schwartz, John. “Accused Qaeda Sleeper Agent in Court.” The New York Times. 23 March 2009.
75
Al-Marri v. Bush, 274 F.Supp.2d 1003, 1004 (C.D. Ill. 2003)
76
Mobbs, Michael. “Declaration of Michael H. Mobbs, Special Advisory to the Under Secretary of
Defense for Policy.” 27 Aug. 2002.
77
Semple, Kirk. “Padilla Gets 17-Year Term for Role in Conspiracy.” New York Times. 23 Jan. 2008.
78
United States v. Faris, No. 1:03-cr-00189-LMB (E.D. Va. Apr. 30, 2003); “KSM’s Brooklyn Bridge
Plot”. Report #8 in a NEFA series, “Target: America”, a NEFA analysis of U.S. v. Faris. The NEFA
Foundation. August 2007
 Terrorists On Trial 17

terrorism cases generally, but also more specifically in cases involving terrorists detained within
the United States. In fact, there has never been a suspected terrorist apprehended within the
United States who has undergone trial by military commission. UFA’s particular case, including
terrorist activities and conditions of arrest, almost directly mirrors that of Richard Reid, who was
charged, prosecuted, and sentenced effectively in federal court. History provides no reason that
our tradition of prosecuting terrorists in federal court should end with Reid.

Fair Processes

Not only are federal courts better able than military commissions to achieve proper
convictions, they also espouse the fair processes which military commissions surrender. In
surrendering these processes and requirements, military commissions lose the value that they
offer in safeguarding against such problems as unnecessary or detrimental trial delays, erroneous
convictions, or violations of the defendant’s rights. On the contrary, federal courts operate by a
system that finds a way to uphold goals of national security without compromising the rights of
the accused.

Right to a Speedy Trial:

As previously mentioned, the Sixth Amendment together with the Speedy Trial Act of
1974 requires that a defendant be indicted within 30 days of arrest and brought to trial within 70
days of indictment.79 Contrary to military commissions, the federal courts embrace the value of
this requirement to preventing unnecessary delays, such as the six-year delay faced by Salim
Ahmed Hamdan or the five-year delays faced by both al Bahlul and David Hicks, even despite
Hicks’s guilty plea. Such delays are problematic not only to defendants, especially those
ultimately acquitted, but also to the government and the public, whose actions and beliefs
sometimes depend on the results of terrorism hearings.
Critics assert that upholding this right comes at a cost to successful convictions in
terrorism trials, as many terrorism cases require more time for preparation, subpoena of material
and witnesses, and processing of voluminous information. Furthermore, critics point out that this

79
18 U.S.C. 3161
 Terrorists On Trial 18

right could be problematic in trying detainees of the past who have already been in custody for
longer than 100 days.
In spite of complaints, the 2008 Supreme Court decision in Boumediene to extend
constitutional rights to detainees at Guantanamo Bay because Guantanamo is “tantamount” to
US property suggests that we may have no choice but to extend the constitutional right to a
speedy trial also to terrorists apprehended on US property. Rather than denying this right, we
must find ways to apply it without compromising our other policy goals.
The courts have interpreted the right to a speedy trial to depend on a number of factors,
including the reason for the delay.80 Furthermore, the Speedy Trial Act itself allows for
expansions of the time limit if “the case is so unusual or complex…that it is unreasonable to
expect adequate preparation…within the time limits established.”81
Based on these allowances, the courts have fashioned solutions to overcome this
difficulty. In United States v. al-Arian82, for example, the defense motioned to dismiss based on
the speedy trial requirement. The court reasoned that the case was complex and dealt with a
relatively new area of law (terrorism), predicted that it would be faced with novel questions of
fact and law, and acknowledged the sheer magnitude of evidence involved (including over
21,000 hours of phone conversations recorded in Arabic). Based on those observations, the court
had no problem dismissing the motion and the speedy trial requirement with it.

Confrontation Rights:

The Sixth Amendment also provides the right of the accused to confront witnesses
against him. In federal courts, this right is typically manifested as the right to cross-examine
witnesses. The military commission system also provides this right to the accused,83 but the
federal courts have nonetheless been criticized for their failure to balance this right with the goal
of successful convictions in terrorism trials. In particular, critics express concern that certain key
witnesses may not be available for testimony, rendering the government incapable of making a
proper case.
The court again crafted a creative solution to this issue in United States v. Abu Ali84.
80
Barker v. Wingo, 407 U.S. 514 (1972)
81
18 U.S.C. 3161(h)(7)(b)(2)
82
United States v. al-Arian, 329 F. Supp. 2d 1294 (M.D. Fla. Aug. 4, 2004)
83
10 U.S.C. 949a(b)(2)(A)
84
United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008)
 Terrorists On Trial 19

Arrested in Saudi Arabia, Abu Ali gave incriminating evidence and confessions to Saudi
authorities. During trial in federal court, Abu Ali claimed those statements were given under
torture. The court required testimony from the interrogators to validate his claim, but the Saudi
government would not permit their travel to the US and they were outside the subpoena power of
the court. To solve this problem, the court authorized prosecutors, two defense attorneys, and a
translator to travel to Saudi Arabia and interview interrogators over a live two-way video feed.
The feed was broadcast in a US courtroom, where the judge, Abu Ali, and one other defense
attorney were present for cross-examinations. Abu Ali also had a mobile phone link to his
attorneys in Saudi Arabia for private conferences.
The defense may also invoke confrontation rights to gain access to a witness who might
corroborate the defendant’s claims. Critics attest that this may become problematic in terrorism
cases at times when the government cannot provide access to certain individuals for security
reasons.
This issue surfaced in United States v. Moussaoui.85 In his trial, Moussaoui, charged in
connection to the 9/11 attacks, requested access to several enemy combatants, including Khalid
Sheikh Mohammad and Ramzi Binalshibh,86 who he claimed would deny his involvement in the
attacks.87 For security reasons, the government does not want terrorism suspects to have access to
other accused al Qaeda operatives in its custody and therefore did not want to grant Moussaoui
his request. The courts agreed and instead authorized the government to introduce substitute
written testimony from the requested detainees that could adequately encompass any exculpatory
information they might have.88 Solutions such as these have become examples to other courts
needing to fulfill confrontation rights without compromising the court’s ability to convict guilty
defendants.

Hearsay:

The Federal Rules of Evidence define hearsay as, “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

85
United States v. Moussaoui, No. 1:01-cr-00455-LMB (E.D. Va. Dec. 11, 2001)
86
The other names remain classified.
87
Hirschkorn, Phil. “Moussaoui requests access to al Qaeda captives.” CNN Law Center. 24 March
2003.
88
United States v. Moussaoui, 365 F.3d 292 (4th Cir. 2004)
 Terrorists On Trial 20

matter asserted.”89 Hearsay is prohibited from federal courts as part of the rules of procedure90 in
effort to prevent the admission of evidence, the truth of which cannot be corroborated. Military
commissions, on the other hand, allow it.91
Opponents of using the courts to prosecute terrorism believe that hearsay must be
allowed in terrorism trials, since the declarant of the statement may not be available to testify in
court and the only remaining option for admitting the information is hearsay.
However, the Federal Rules of Evidence also provide 33 exceptions to the hearsay rule.92
Rule 804, for example, allows for an exception of the Hearsay rule if the declarant is unavailable,
refuses to testify regarding the statement, or cannot recall the statement. Rule 807 allows for
“residual exception” by which the judge may make an impromptu exception to the hearsay rule.
Further, the language in the law allows for both the Supreme Court and Congress to create rules
to limit the use of hearsay in certain situations.93
Issues involving the admissibility of hearsay in terrorism trials may also be resolved by
the issuance of substitute information. If the issue in terrorism trials is the unavailability of a
witness to validate certain hearsay testimony, the court could authorize the government to
introduce a substitute written testimony from the hearsay declarant to verify its truth, similar to
the way in which the government used substitute written testimony to satisfy Moussaoui’s
confrontation rights.

Federal courts have developed such requirements as the right to speedy trial,
confrontation rights, and prohibitions of hearsay in order to ensure a fair process to all involved
parties. Terrorism trials do test these processes, but the federal courts are not machines that
mindlessly apply a pre-written set of rules. Rather, federal courts are controlled by judges and
juries who understand the importance of convicting guilty terrorists and the unique challenges
the courts face in terrorism trials. The courts have proven their ability to develop creative
solutions to upholding these fair processes amidst difficult circumstances and will continue to do
so in the future.

89
Federal Rules of Evidence, Article VIII, Rule 801
90
Federal Rules of Evidence, Article VIII, Rule 802
91
10 U.S.C. 949a(b)(3)(D)
92
Federal Rules of Evidence, Article VIII, Rules 801(d), 803-4, 807.
93
Federal Rules of Evidence, Article VIII
 Terrorists On Trial 21

National Security

Whereas military commissions uphold national security goals through the exclusion of
procedural rights, federal courts uphold them through the proper application of those processes.
Just as with military commissions, federal law includes an entire appendix related to the
protection during trial of classified information that, if leaked to terrorists or to the public, could
harm the United States.94
US law enforcement has repeatedly proven its ability to use federal investigations to
uncover complex terrorism networks and plots within the United States. After the 1993 World
Trade Center bombing, for example, an FBI investigation unveiled a terrorist cell operating in
New York and New Jersey, which was planning bombings of the Holland and Lincoln tunnels
and the United Nations building. The FBI later arrested, charged, and convicted thirteen
conspirators of these plans in federal court.95
More recently, the May 4, 2010 arrest and investigation of Faisal Shahzad, who
attempted to detonate explosives in Times Square, has led to the discovery of another web of
US-based terrorists. This network includes some high profile names, including Anwar al-Aulaqi,
who has been linked to a number of other terrorism plots including those of 9/11; Major Nidal
Malik Hassan, arrested for the shootings at Fort Hood; and UFA.
Despite these successes, critics of the federal courts continue to maintain that upholding
in particular discovery and Miranda rights interferes with national security interests.

Discovery Rights:

In terrorism cases, the courts face the challenge of balancing the defendants’ rights to
confront the evidence and witnesses against them96 with the need to protect classified
information that, if disclosed, could impact national security.
Enacted by the Carter administration facing these same problems during the Cold War ,97
the Classified Information Procedures Act (CIPA) allows for either party to move for a

94
18 U.S.C. Appendix iii.
95
Zabel, Richard B and Benjamin Jr., James J. “In Pursuit of Justice: Prosecuting Terrorism Cases in the
Federal Courts.” Human Rights First. May 2008. P. 15.
96
Brady v. Maryland, 373 U.S. 83, 87 (1963); The Constitution of the United States, Sixth Amendment.
97
Turrin, Serrin and Schulhofer, Stephen J. “The Secrecy Problem in Terrorism Trials.” Liberty &
National Security Project. Brennan Center for Justice at NYU School of Law: 2005. Pp. 18-19.
 Terrorists On Trial 22

conference to consider the admissibility of classified information.98 If the court determines that
the classified materials must be disclosed but pose risk to national security, it can authorize that a
substitute form of the materials be provided.
The court has used CIPA to fashion creative solutions to issues involving disclosure of
sensitive information. For example, in United States v. Abu Ali99, the Fourth Circuit Court of
Appeals upheld the District Court’s decision to exclude Abu Ali and his defense attorney (who
did not have security clearance) from discussions about materials protected under CIPA. In
United States v. Rosen,100 the court developed a “silent witness rule”, which involved the creation
of a series of “codes” for certain names, people, and other sensitive information that it
determined should not be disclosed to the public. The court provided the judge, jury, counsel,
and witnesses with a “key” explaining what each “code” meant, and they were instructed to use
code words for certain names, locations, and other details that the court determined should
remain secret. This key was not provided to the public, so this method allowed the court hearings
to proceed without disclosing compromising information.
Some point out that CIPA does not consider the possibility that a defendant seeks to
exercise his right to self-representation101 at trial. In situations in which it would compromise
national security to disclose certain evidence to the defendant, the court would be forced to make
an impossible decision between maintaining the integrity of secret information and allowing a
fair trial for the defense. While CIPA does not explicitly include a provision for this scenario, the
courts have addressed it. For example, in United States v. Moussaoui102, the court denied
Moussaoui’s request for self-representation. This exception to the right to self-representation is
grounded in the Sixth Amendment, but this exception to protect classified information has
already been validated by the court and it is therefore likely that other courts will be able to deny
self-representation requests in future terrorism trials on the same basis.

Miranda rights:

By far the more troubling argument raised against the federal courts involves concerns
that reading Miranda rights to a suspect upon arrest might deter that suspect from providing
98
18 U.S.C. app. 3
99
United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008)
100
United States v. Rosen, No. 05-cr-00225, 2007 WL 3243919
101
This right recognized in Faretta v. California, 422 U.S. 806. (1975)
102
United States v. Moussaoui, No. 1:01-cr-00455-LMB (E.D. Va. Dec. 11, 2001)
 Terrorists On Trial 23

intelligence vital to the security of the United States. But closer analysis of Supreme Court
precedent shows that Miranda rights are not nearly as problematic in maintaining national
security as critics assert.
Established in Miranda v. Arizona,103 Miranda rights are meant to protect suspects against
compulsory self-incrimination. In Michigan v. Tucker,104 however, the Court explained that
Miranda requirements are not themselves constitutional rights, but rather procedural safeguards
for protecting a suspect’s Fifth Amendment rights. Failure to read Miranda rights is not itself a
violation of the Constitution unless the questioning officer also compelled the suspect to
incriminate himself.105
The Supreme Court later expanded upon this distinction by establishing a more formal
“public safety” exception to the Miranda requirements that applies in terrorism cases. In New
York v. Quarles,106 the Court acknowledged that Miranda sometimes sacrifices information that
would be helpful in court for the sake of upholding the defendant’s rights. According to the
Court, this is not a cost that we can afford to bear when the sacrificed information might help
preserve the public safety.
The FBI has recently begun applying this exception to terrorism investigations. After
UFA was apprehended, the FBI conducted an initial interrogation to gather certain intelligence
before reading him his Miranda rights.107 The FBI has been heavily criticized, though, for the
length and quality of this interrogation. The pre-Miranda questioning lasted approximately fifty
minutes while doctors prepared him for surgery to treat the burns sustained during his failed
attack.108 These criticisms only escalated when UFA stopped providing information once the FBI
read his Miranda rights.109
In fact, the law suggests that the FBI can expand and improve such pre-Miranda
interrogation in accordance with two additional Supreme Court rulings.110 In Missouri v.

103
Miranda v. Arizona, 384 U.S. 436, 458 (1966)
104
Michigan v. Tucker, 417 U.S. 433, 444 (1974)
105
Though the burden of proof rests on the prosecution to show that the evidence was not compelled.
106
New York v. Quarles, 467 U.S. 649 (1984)
107
Associated Press. “How Abdulmutallab was questioned.” MSNBC. 24 Jan. 2010.
108
York, Byron. “Abdulmutallab interrogated for less than an hour; White House defends handling of
terrorist case.” The Washington Examiner. 24 Jan. 2010.
109
Id.
110
Oregon v. Elstad, 470 U.S. 298 (1985); Missouri v. Seibert, 542 U.S. 600 (2004)
 Terrorists On Trial 24

Seibert,111 the Court outlined specific guidelines that would ensure the validity of pre-Miranda
interrogation, midstream Miranda warnings, and post-Miranda questioning. These considerations
include 1) completeness and detail of the questions asked and answers given in the pre-Miranda
interrogation, 2) the degree to which content in each session overlaps, 3) timing and setting, 4)
continuity of police personnel, and 5) the degree to which the interrogator’s questions treat the
post-Miranda questioning as a continuation of the pre-Miranda interrogation.112
These rulings suggest that law enforcement could actually implement a much lengthier
and more sophisticated pre-Miranda interrogation as long as they adhere to the guidelines given
in Seibert. In particular, the pre- and post-Miranda questionings should be conducted by different
people in different locations, after sufficient time has elapsed. Each questioner should have no
knowledge of the questions asked, information obtained, or strategies employed by the other.
The pre-Miranda questionings could be conducted by the newly created High-Value
Detainee Interrogation Group (HIG), which was created specifically for this purpose.113 The HIG
includes experts from multiple intelligence and law enforcement agencies and so should be able
to leverage the resources of multiple agencies to act quickly on information gleaned during
interrogations.
To maintain integrity of the procedure, the HIG should define a timeline at the beginning
of this phase. Although the suspect does not need to know this timeline, indefinite detentions are
not authorized unless the suspected has lawfully violated the laws of war, so some timeline
should be defined. Timelines as long as several months should be permissible when they are
necessary, so long as a concrete threat to public safety exists and law enforcement deliberately
and explicitly adheres to the guidelines outlined in Siebert. The clear definition of a timeline, the
existence of a public safety threat, and close adherence to the procedures outlined in Siebert
should constitute the due process required by the constitution.
After the HIG finishes gathering the necessary intelligence information, law enforcement
should formally arrest the suspect, read Miranda rights, and initiate normal processes for
collecting testimonial evidence necessary for successful conviction. These processes should take
place at a different location from the HIG interrogations.
Separating intelligence gathering from evidence collection in terrorism trials as proposed
111
Missouri v. Seibert, 542 U.S. 600 (2004)
112
Id. at 611-612.
113
Kombult, Anne E. “New Unit to Question Key Terror Suspects”. The Washington Post. 24 Aug. 2009.
 Terrorists On Trial 25

here allows unhindered inquiry into national security concerns while upholding a defendant’s
right against self-incrimination. In this way, this proposed model ensures that Miranda rights do
not come at the cost of information that is necessary for maintaining the safety of the United
States and its citizens, a cost that the Court in Quarles reasonably identified as unacceptable.

In addition to close adherence to the three previously identified goals in our current
conflict with terror, we must ask ourselves if we really want to apply the laws of war inside the
United States as if this were a war zone. Although the AUMF has defined al Qaeda as our enemy
and although al Qaeda members could reside within the United States, our military does not
engage in active battle inside US territory. When suspected al Qaeda supporters are believed to
within the United States, the FBI tracks them down and captures them, not the armed forces. We
would not want our military to target anything inside the United States with drone strikes, as it
may do in the deserts of Afghanistan. These actions would not only cause significant unrest and
disruption to normal life; they would also put our own civilians at continual risk of collateral
damage. In fact, a wealth of law dating back to the Posse Comitatus Act of 1878114 specifically
forbids the use of the military within the United States and forms the basis of the differing
jurisdictions of the FBI and the armed forces.
Finally, we should not underestimate the way federal courts involve the entire country in
the struggle against terrorism. It will require more than military success to win our global fight
against terrorism. Victory in this conflict depends on our ability to leverage all of our country’s
resources against terrorists and in support of American values of justice, freedom, and prosperity.
The strength of its people is and has always been a defining force in American history, and it is
important for us to continue to take advantage of this power in our conflict with terrorism. Trial
by federal court is open to public attendance, and proceedings are broadcast and transparent to
the American people. This allows citizens to participate in the fight—to rally behind successful
prosecutions, to become infuriated at occasional setbacks, and ultimately to amplify our
collective voice in rejection of terrorism as a part of our society.

Conclusion
114
The Posse Comitatus Act, 20 Stat. 145 (1878).
 Terrorists On Trial 26

Military commissions and federal courts both play important roles in our ongoing conflict
with global terrorism. Although for both legal and policy reasons, federal courts are more
appropriate for prosecuting terrorists apprehended within the United States, military
commissions are more appropriate for prosecuting other categories of detainees, such as those
captured in zones of combat.
We should think of military commissions and federal courts not as forces in constant
opposition, but rather as two separate systems with different jurisdictions. Each has its own
strengths and limitations, and each can inform the other in how to become a more effective
handler of terrorism-related cases.
The situation involving UFA illustrates how US officials are beginning to treat the two
systems in this way. UFA’s case is one of very few more recent cases to involve pre-Miranda
interrogations. But with an unnecessarily short interrogation process, the UFA case also
illustrates how much left there is to learn, and in what ways law enforcement can still improve.
Constant learning is not a new feature of either federal courts or military commissions.
Just as military commissions have evolved to include basic safeguards, such as the prohibition of
statements given under torture, the federal courts have evolved creative solutions for balancing
procedural rights with national security concerns. Federal courts have adapted to challenges of
the past, are addressing emerging threats of terrorism in the present, and will continue to solve
new issues in the future. In our global fight against terrorism, we can and must entrust the federal
courts to prosecute terrorists detained within the United States.