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Panel Preview: Trial Issues in Terrorism Cases
(JNSL&P Symposium on Terrorism Trials)

[Editor’s Note: The following post is the third in a four-part series previewing Wednesday’s annual symposium of the Journal of National Security Law & Policy (Part I | Part II). Part IV will appear tomorrow morning.]

Some Members of Congress reject the criminal justice system as a means of bringing terrorist suspects to justice on the grounds that it cannot handle such cases.  Yet Article III courts have routinely, and successfully, managed international and domestic terrorist cases. The U.S. Department of Justice reports that between 2001 and 2010, there were 998 defendants indicted in terrorism prosecutions.  Eighty-seven percent of those defendants were convicted on at least one charge.  According to the Executive Office for the U.S. Attorneys, from FY 2004 to FY2009, there were 3,010 terrorism prosecutions.  It reported 2,663 terrorism convictions during the same time period.

Success should not merely be determined based on convictions.  The purpose of the criminal justice system is to ensure that justice is done.  But to the extent that the numbers matter, they show that Article III courts have seen cases through to the end. This does not mean that these cases are easy.  There are myriad difficulties that arise.  Perhaps no better example of Article III’s competence—and the difficulty of taking such cases through the ordinary judicial system—can be found than the trial of Zacarias Moussaoui.

It is thus with great pleasure that we welcome Judge Leonie Brinkema, who adjudicated the case, to the second panel of the Symposium.  She brings a wealth of knowledge to how the courts can and do handle terrorism cases, ranging from those actively engaged in violent activity, to others, like Iyman Faris, who provide material support.

Joining Judge Brinkema will be four of the country’s foremost experts in the prosecution and defense of individuals accused of terrorist crimes.

For the prosecution, Joanna Baltes, Chief of Staff to the Deputy Director of the Federal Bureau of Investigation, has experience as a trial attorney in the Office of Military Commissions, as well as in Article III courts, as Counsel to DOJ’s Assistant Attorney General for National Security.  Baltes has been on the prosecution team for some of the most notable military and civilian trials, such as those involving Khalid Sheikh Mohammed, Ali Al-Nashiri, and Ali Al-Marri.

Gregg Maisel, the Chief of the National Security Section in the U.S. Attorney’s Office for the District of Columbia, has a long and broad history in the field.  He prosecuted U.S. v. Zaid Safarini (the 1986 attempted hijacking of Pan Am Flight 73 in Karachi, Pakistan, by the Abu Nidal Organization), U.S. v. Wesam al Deleama (the first criminal prosecution arising out of terrorist activities in Iraq), and U.S. v. Madhatta Haipe (the leader of Abu Sayyaf Group prosecuted for the 1995 hostage taking of Americans in the Philippines).  In addition to supervising several prosecutions of FARC members, he is currently supervising U.S. v. Ahmed Abu Khattallah (the Benghazi attack) and U.S. v. Nizar Trabelsi (an al Qaeda plot to target US interests in Europe immediately after 9/11).

On the defense side, Geremy Kamens, the First Assistant Federal Public Defender for the Eastern District of Virginia, has significant experience.  He represented Yaser Hamdi, the first so-called enemy combatant held in military custody in the US post-9/11, through 3 appeals and the Supreme Court ruling in 2004, which led to his release.  This week, The New Yorker discusses his defense of Eric Harroun.  He currently is representing a defendant charged with providing material support by sending money to Al Shabaab.

Joshua Dratel, co-author, with Karen Greenberg, of The Torture Papers and Co-Chair of the Select Committee on Military Tribunals, National Association of Criminal Defense Lawyers, has a list of clients that reads like a who’s-who of accused terrorists, including, inter alia, Wadih el Hage (convicted of conspiracy in the 1998 bombings of U.S. embassies in Kenya and Tanzania), David Hicks (an Australian citizen who argued that he had been subject to inhuman and degrading treatment in Guantanamo Bay), and Baasaly Maolin (a Somali cab driver in San Diego, whose telephone records revealed that he had reportedly sent money to al-Shaabab).

This esteemed panel will address issues that range from ways in which rules of evidence prevent critical information (potentially obtained from battlefield conditions or from interrogation) from being used in the ordinary judicial system, to the difficulties of handling classified information in a public setting.  Constitutional considerations also enter the picture.  Questions relating to how to satisfy the Confrontation Clause in a public setting, ways in which the right to a speedy trial plays out with the complex negotiations between agencies and international considerations that mark terrorism trials, and how to handle pro se defendants, stand foremost amongst these concerns.

Panelists will explore the questions that mark each of these areas, drawing parallels between trial management in national security cases and non-national security cases.  They will consider how the Classified Information Procedures Act (CIPA) plays out in the trial context, probing its strengths and weaknesses.   The discussion will further emphasize the international dimension—considering, for instance, Mutual Legal Assistance Treaties (MLATs) (reforms recommended by the President’s Review Group, with critiques of the same by numerous commentators—see, e.g., Access), Letters Rogatory, the institutional structure of the prosecutorial system overseas, and how foreign witnesses and rules of evidence are addressed.


About the Author

Professor of Law at Georgetown University Law Center and Director, Georgetown Law Center on National Security and the Law