[Editor’s Note: The following post is the first in a four-part series previewing next Wednesday’s annual symposium of the Journal of National Security Law & Policy, and is authored by the symposium’s student editors. Parts II, III, and IV will appear Thursday, Friday, and Monday, respectively.]
Next Wednesday, the Journal of National Security Law & Policy will host its 2015 symposium, Trials and Terrorism: The Implications of Trying National Security Cases in Article III Courts, a daylong series of discussions focusing on the unique procedural, substantive, and evidentiary issues that arise when the government prosecutes terrorism and national security cases in civilian courts. These issues are multifaceted and present substantial precedential implications for subsequent cases—implications that have been understudied and undertheorized to date. The symposium will explore the range and complexity of these issues and consider how, if at all, they inform the ongoing debate over the ability of the civilian criminal justice system to try national security cases.
The first panel, titled Terror Suspects: Pretrial Considerations in Civilian Terrorism and moderated by Professor Jen Daskal from American University Washington College of Law, will discuss the general procedures, law, and processes involved in international terrorism investigations, from the initial investigatory stages through capture, detainment, charging decisions, and indictment. The panel will also identify when and how constitutional protections are afforded to terror suspects at these various stages, and whether and to what extent courts have adopted different answers to some of these questions to accommodate terrorism cases.
The second panel, titled Courtroom Challenges: The Evidentiary and Trial Management Issues That Arise During Terrorism Trials and moderated by Professor Laura Donohue from Georgetown University Law Center, will focus on the structure of terrorism trials and the ad hoc procedures developed by Article III courts in terrorism prosecutions to handle some of the unique logistical and substantive issues that have arisen in these cases. The panel will also explore the extent procedural protections for defendants have been altered to accommodate the unique challenges of national security cases both within the civilian courts and the Guantánamo military commissions, whether these alterations effectively serve the interest of justice, and whether these decisions are setting precedents beyond the limited class of national security cases.
The third panel, titled Convicted Terrorists: Sentencing Considerations and Their Implications on Foreign Policy and moderated by Professor Steve Vladeck from American University Washington College of Law, will look more carefully at the policies governing the sentencing of convicted terrorists in Article III courts and what precedential affect those policies may have on our own legal system, as well as the legal frameworks of other foreign nations. The panel will address the application of Sentencing Guidelines to terrorism cases, the amount of deference given to trial courts at the sentencing stage, and the series of circuit level decisions holding that relatively lenient sentences in high-profile terrorism cases have been substantively unreasonable.
The symposium will also feature a keynote address by the Honorable Lewis A. Kaplan, U.S. District Judge for the Southern District of New York. In his two decades on the federal bench, Judge Kaplan has presided over a number of major terrorism prosecutions and issued precedent-setting rulings in several of them, most notably the prosecution of former CIA and Guantánamo detainee Ahmed Khalfan Ghailani. Judge Kaplan’s keynote will reflect upon the lessons learned from these cases—and their precedential value going forward.
The Journal of National Security Law & Policy is co-sponsoring the symposium with the Georgetown Center on National Security and the Law. The Journal of National Security Law & Policy is the world’s only peer-reviewed journal devoted exclusively to national security law and policy. The Georgetown Center on National Security and the Law aims to bridge the academic and policy communities to foster balanced, nonpolitical examination of national security-related issues, and to develop sophisticated strategies and practical policies for enhancing national security and protecting constitutional values. The symposium’s goal is to further legal and policy discussions as well as inspire insightful scholarship concerning the significance of bringing national security cases to civilian courts. More details on the symposium, including details on how to register to attend, are available here. And for those who cannot attend, each of the symposium panels will also be podcast after the fact here at Just Security, which will also feature detailed previews of each of the three panels in the coming days from the panel moderators—Professors Daskal, Donohue, and Vladeck.