Criminal Law: Substantive

The Terrorism Trial Debate and Abu Ghaith

By Wells Bennett
Friday, March 28, 2014, 11:16 AM

In yesterday’s New York Times, Ben Weiser reported that Abu Ghaith’s case has renewed the “debate” over civilian terrorism trials. To my ear, this sounds a bit like today’s debates over New Coke, or the Dukakis Campaign.

I haven’t had much to say about Abu Ghaith’s prosecution, because whole thing struck me as straightforward and entirely desirable: a foreign government picks up a bad Al-Qaeda guy; the United States interrogates him consistent with civilian rules, and obtains lots of useful information; the accused is charged in SDNY and, quite swiftly, convicted. Predictably, that sequence of events elicited the usual grousing from Senator Lindsey Graham and Congressman Peter King; along with some notes of “told you so” from the Attorney General, who touted the civilian system as an option for the 9/11 case. In that respect, I suppose there is still a residual (if not especially consequential) “debate” over the federal courts’ general fitness to handle this stuff.

But it’s got to be an increasingly lonely debate, considering the dwindling numbers on one side. It really only comes up when the likes of Senator Graham and Congressman King issue press releases. (Senator Kelly Ayotte, who usually completes the trifecta, was silent this go-round, or at least a Google search didn't turn up anything from her.)  Or when they speculate wildly about a missed intelligence bonanza, or despair over the application of criminal procedure to foreign terrorists. And yet so far as I can tell, not a lot of other people really join up with Graham and company, in interviews and pressers and so on. The political constituency for requiring detention and interrogation under the law of war every time---and prohibiting it under criminal rules every time---isn’t especially visible. There also aren’t white papers and panel discussions, doubting the federal system’s general ability to ensure the public safety while respecting defendants’ rights.  And nobody really thinks we’ll see an expanded jurisdiction for military commissions, or a narrowed jurisdiction for civilian courts.

All of which strikes me as even more evidence of just how well-settled the policy debate has been on this score, and for some time now.  Maybe you think that some cases ought to be tried in a military commission; maybe you think that no cases should be tried in that forum, ever. But either way, though, the “debate” about the federal courts generally---such as it is---exists mostly in the past, or in the minds of Senator Graham and his colleagues. These days just about everybody else agrees: the civilian system can and should hear terrorism cases.