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Should terrorism suspects be tried in federal court?

9/11 suspect Khalid Shaikh Mohammed will be tried in federal court, not by a military commission

Federal criminal courts have a long history of successfully trying terrorism cases without risking the public's safety.

Since the 1980s, U.S. courts have tried more than 130 terrorism cases, including the first attack on the World Trade Center, in 1993; the 1998 bombings of U.S. embassies in East Africa; and the attempt in 2001 by "shoe bomber" Richard Reid to blow up an airplane.

More than 300 international and domestic terrorists have been convicted by federal courts and are currently behind bars in the U.S. There has never been any significant security breach, and the courts have a proven track record of handling sensitive intelligence information.

Military commissions don't meet the standards for a fair trial, thus damaging public perceptions of the U.S. and weakening our national security. Widely regarded as show trials, they reduce the willingness of foreign governments to work with us. Various countries have delayed extraditions to the U.S. on the basis that our practice of detaining suspects outside the criminal justice system raises serious legal and human-rights concerns.

An unfair system not only risks convicting the innocent, but also provides someone who is truly guilty with a valid complaint to challenge his conviction. This delays justice and doesn't help anyone.

Opponents of trying terrorism suspects in federal courts argue that our justice system can't handle these cases. In fact, courts are our best line of judicial defense against terrorism, and the only effective means of safeguarding our democratic institutions, international standing, and national security.

Leili Kashani
Center for Constitutional Rights

Terrorism suspects like Khalid Shaikh Mohammed, the admitted mastermind of the 9/11 attacks, should be tried in military commissions, not in U.S. courts.

Military commissions are a form of military court that the U.S. has used since the Revolutionary War. Spies, saboteurs, and other fighters who don't obey basic rules of war, such as wearing uniforms, have traditionally been tried and punished by military commissions.

This makes sense. The rules governing military commissions take into account the differences between fighting a war and domestic policing.

Civilian courts can and should set high standards of evidence and police work. Our Constitution requires this. The police control the crime scene when they investigate a crime. Detectives and prosecutors have access to any material evidence and witnesses, and a judge can give them permission to search a suspect's home, car, and other belongings for more evidence.

This simply is not true of warfare. The U.S. military does not control the countries where we fight Al Qaeda the way our police control our city streets. When Al Qaeda members are captured, the soldiers fighting them usually cannot collect forensic evidence. Often, they cannot testify in court. Because warfare is so different from police work, military commission judges can allow the use of some types of evidence—such as hearsay evidence—that are generally excluded from civilian trials.

If we pretend that Al Qaeda fighters are just like any other criminal defendants rather than enemy soldiers in a war, and try them in civilian courts, many will be set free to rejoin their forces and to fight against us again.

David B. Rivkin & Lee A. Casey
Former Staff Attorneys, Department of Justice*

*Rivkin and Casey served in the Justice Department during the Ronald Reagan and George H.W. Bush administrations. (The New York Times Upfront, Vol. 142, April 5, 2010)