Military Tribunals or Federal Courts Terrorism Essay

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Background of Terrorist Trials in the United States

Terrorism occupies a unique liminal position, somewhere between acts of war and criminal acts. Because of this, jurisdiction, the rights of terrorist suspects, and other ethical and legal conundrums have lent themselves to an inconsistent and ambiguous terrorist trial system in the United States. Historically, as now, terrorist trials in the United States have taken place in several different jurisdictions, and prosecutorial discretion can be based on factors like circumstantial and situational variables or on political whim. Whether or not the terrorist incident was allegedly perpetrated by a domestic or an international group may also have a bearing on how a terrorist trial is conducted. Some terrorist trials have taken place in civilian courts and others in military courts, neither of which seem ideally suited to address the complex issues associated with terrorism.

Since September 11, the federal government expanded its own powers to detail terrorist suspects indefinitely without a trial, overriding Constitutional law. One of the reasons why terrorist trials are so inconsistent and ambiguous is because of disagreements over the efficacy, ethics, legality, and desirability of the power to refuse suspects the rights otherwise bestowed upon the accused. As Bennett & Litt (2009) point out, “the government’s legal, practical and moral authority to detain suspected terrorists without trial remains a subject of fierce debate,” (p.1). The fact that many terrorist suspects are not American citizens has facilitated the federal government’s ability to detain suspects indefinitely without a trial, ostensibly for “preventative” purposes proclaiming national security (Bennett & Litt, 2009, p. 1). However, Constitutional law is generally interpreted in ways that extend protections like Miranda rights to non-citizens of the United States (“Myth v. Fact: Trying Terror Suspects in Federal Courts,” 2018). Likewise, the United States has maintained offshore detention facilities, most notably the one at Guantanamo Bay, in order to conveniently and credibly circumvent the pesky legal constraints that would otherwise apply if detention centers sat more squarely on American soil even though technically such offshore locations count as American soil.

Where Should Terrorist Suspects Be Tried?

Currently, there is no single standard by which terrorist suspects are tried and prosecuted. Terrorist suspects can be processed through a civilian federal court system, or through the military court system involving a tribunal. Even within this bifurcated system, terrorist trials have tremendous heterogeneity. For example, four terrorist trials involving suspects from the same 2014 Benghazi attack took place in four separate federal courthouses (Greenberg, 2017).

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Because federal prosecutors can also keep much of the information related to the terrorist trials, including subsequent court records, classified due to national security, there is often little in the way of oversight or even “notice” for the general public—raising questions about government transparency in the two-court system, even when the civilian courts are being used (Greenberg, 2017, p. 1). Military tribunals are substantially different from civilian courts, in terms of procedure and also in terms of political philosophy; unlike civilian trials they can take place behind closed doors, barring access to the Fifth Estate. Therefore, when considering where terrorist suspects should be tried, the answer rests with clarifying what the intended goals of the trial are: to err on the side of caution even if it means convicting the innocent and overriding the principles of human rights; or to err on the side of human rights even if it means risking the release of a terrorist.

Pros cons of each tribunal

Generally, those in favor of military tribunals for terrorist suspects tend to take a more hard-lined stance towards suspects, an approach that is more akin to “guilty until proven innocent,” than the opposite. The pros offered in favor of military tribunals include their intent to safeguard national security by preventing any suspect from being able to take advantage of a legal loophole or problem with procedural justice that might lead to an acquittal of those who had actually committed terrorist acts and would do so again. Military tribunals also afford terrorism itself the status of a war crime as opposed to being classified as a criminal act. Where the terrorist suspect is tried has a direct impact on judicial proceedings at every stage of the process from apprehension and detention to prosecution and sentencing. The suspect in a military tribunal also has fewer legal rights than if that suspect were to be tried in a civilian court, which skews the judicial process in favor of the prosecution. The military tribunal approach has enabled the indefinite detention of terrorist suspects at Guantanamo (Greenberg, 2017). Ironically, though, the numbers do not reflect the presumed superiority of military tribunals to convict terrorist suspects. While only eight terrorist suspects have been convicted in military trials, almost seven hundred have been convicted in….....

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Bennett, W.C. & Litt, R.S. (2009). Better rules for terrorism trials. Brookings Institute.

Greenberg, K.J. (2017). Prosecuting terrorists in civilian courts sill works. The Atlantic.

“Myth v. Fact: Trying Terror Suspects in Federal Courts,” (2018). Human Rights First.

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