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BRINGING TERRORISTS TO JUSTICE UNDER THE RULE OF LAW

By Peter Raven-Hansen
Glen Earl Weston Research Professor of Law
The George Washington University Law School

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photo of Peter Raven-Hansen "Bringing terrorists to justice under the rule of law is a slow, cumbersome, inefficient business," says George Washington Law School Professor Peter Raven-Hansen. Nevertheless, the United States continues to apply the rule of law in the investigation and prosecution of the global war on terrorism. "The United States has responded to terrorist attacks with the same tools of criminal justice: surveillance, arrest, detention, and trial."

The history of lawless police states leaves little doubt how one would respond to a terrorist attack. The government would declare a national emergency to invoke new "emergency" powers and measures. Already secretly tracking many citizens, the police would expand surveillance in a search for the attackers. They would quickly arrest suspects, potential witnesses, and maybe dissidents and critics as well. The arrested would be held in isolation and possibly abused to make them talk. Finally, the authorities would first secretly decide who is guilty (or who should be called guilty) and afterwards announce that judgment in show trials, followed by execution or long terms of imprisonment. A lawless response would be swift and seemingly efficient because it could be decided personally by one or a few men whose orders are "law" to their underlings.

The United States has responded to terrorist attacks with the same tools of criminal justice: surveillance, arrest, detention, and trial. But in a state ruled by law rather than personal fiat, these tools are not crafted by President Bush and his counselors. They were instead authorized by pre-existing laws in the U.S. Constitution, legislation enacted by Congress, and executive regulations. Furthermore, with few exceptions, the only U.S. "emergency powers" are ones given the President by laws which Congress has previously passed, not ones he gives himself because he thinks it necessary. And if the tools provided by law prove to be too slow and cumbersome to meet the terrorist threat, they must be changed by a public legislative process, not by presidential order.

SURVEILLANCE

The U.S. Constitution protects the people from "unreasonable searches and seizures." To be reasonable, a search -- whether conducted physically in the home or electronically by wiretap or other communications intercept -- must ordinarily be pre-approved by an independent judge on evidence showing that there is probable cause to believe that evidence of a crime will be found. Evidence obtained in violation of these standards can be thrown out of court. But the U.S. Supreme Court has recognized that collecting security intelligence is different from collecting evidence of a crime, partly because it is needed to prevent spying or terrorism and not just to solve completed crimes. Congress has therefore enacted a law permitting independent judges to authorize surveillance for the purpose of collecting foreign intelligence on a lesser showing of probable cause. The government need only show that there is probable cause to believe that the target of the surveillance is a foreign agent or international terrorist.

Such foreign intelligence surveillance was already being conducted before the September 11 attacks on the United States, and, indeed, had produced crucial evidence against the terrorists who were ultimately tried for the 1998 bombings of the U.S. embassies in Tanzania and Kenya. But the law before September 11 also restricted some surveillance. U.S. newspapers report, for example, that before September 11 the government was unable to make the showing required to obtain surveillance of one of the men now suspected of participating in the September 11 attacks. In addition, the pre-September 11 foreign surveillance law was technologically obsolete in some respects. It was intended to apply chiefly to traditional telephone wiretaps and was not well suited to e-mail and other means of communications developed since the law was enacted.

The Bush administration therefore sought changes in the law from Congress after the September 11 attack. Because the U.S. lawmaking process is public, so was the ensuing debate in Congress and in the U.S. mass media. Defenders of privacy resisted many of the changes sought by the Administration, and proponents of greater security promoted them. In the end, some compromises were made in a new law expanding security surveillance. Yet the new law still falls short of the unrestricted surveillance, which we would expect in a police state. An independent judge must still approve security surveillance, it must still be directed at foreign agents or international terrorists, with special protections for U.S. citizens in many cases, and it is still not open-ended.

ARREST AND DETENTION

In the first seven weeks of its investigation of the September 11 attacks, the Federal Bureau of Investigation detained over 1,100 persons. But the U.S. Constitution protects a person from unreasonable "seizure" -- arrest and detention -- as well as from unreasonable search. There is no law, which allows general "preventative detention" -- detaining a person indefinitely in order to prevent him from committing a crime in the future -- except for enemy aliens in war. The police may stop someone for questioning only on reasonable suspicion that he has been or is involved in criminal activity and may detain him only temporarily before charging him with a crime.

The arrest of most of the 1,100 met this standard, but not because they were reasonably suspected of being involved in the September 11 attack. Instead, they were arrested on suspicion of committing what the U.S. Attorney General called "spitting on the sidewalk": minor crimes like traffic violations, using false identities, or credit card fraud. Detention without bail for persons suspected of such minor crimes is unusual; often even conviction for such crimes carries no jail sentence. Consequently, the "spitting-on-the-sidewalk" detentions have been the subject of growing debate in the media, and defenders of civil liberties have insisted that the government is really embarked on an unprecedented and legally controversial policy of preventative detention to meet the threat of terrorism.

Another 200 detainees are aliens who are reasonably suspected of violating their immigration status in the United States, by, for example, overstaying their student visas. Before September 11, however, persons suspected of minor "overstays" were hardly ever detained for more than a short period while they awaited immigration proceedings. The continued detention of such aliens in the September 11 investigation has also been criticized as preventative detention.

Nevertheless, there is an essential difference between the wholesale and unrestricted round-up of suspects and dissidents which we would expect in a lawless police state and the September 11 detentions. It is that the U.S. government has been obliged publicly to justify its arrests by law, even if its justifications have been criticized. In addition, the detainees have rights under U.S. law while they are detained. A detainee has the right to call a lawyer, and if the detainee is charged with a crime, he has a right to have a lawyer appointed for him at government expense. The Department of Justice has asserted that each detainee has been informed of this right, although questions remain about how easy it has been for detainees to exercise the right. Detainees also have a right to be protected from physical abuse during their detention. No one has yet credibly complained that this right has been violated.

Under the rule of law, it is usually preferable to change law when it no longer meets perceived social needs than to bend it, let alone break it. In fact, the Attorney General did ask Congress for new authority to detain a person indefinitely if he had reason to believe that the person was a terrorist or was likely to commit a terrorist act. Despite the terrorist emergency, Congress rejected that request, doubting that such an expansion of detention authority was necessary or constitutional. Instead, it has given him new but limited authority to detain aliens for short periods before starting immigration proceedings against them.

TRIAL

The U.S. Constitution guarantees a bundle of important rights to a person charged with a crime. First, and perhaps most important, he has the right to a speedy and public trial. He has the right to confront the witnesses and see the evidence against him. He has a right to a lawyer at the government's expense. He has the right to ask for a jury of impartial ordinary citizens to decide whether the evidence shows his guilt "beyond a reasonable doubt." And he has the right to see any evidence, which the government has found which might show his innocence.

These rights were afforded the terrorists who were tried in U.S. courts for the 1993 World Trade Center bombing, the 1995 Oklahoma City bombing, and the 1998 embassy bombings. In the latter case, for example, lawyers for defendants -- indicted along with Osama bin Laden as members of the al-Qaida network -- succeeded during a five-month trial in having some criminal charges dismissed, some surveillance declared unlawful, and some evidence against them thrown out of court. Nevertheless, after hearing 205 witnesses, the jury found beyond a reasonable doubt that defendants were guilty of bombing the U.S. embassies.

Despite the government's unbroken record of success in terrorist prosecutions, however, they have not been problem-free. A major drawback in trying terrorists is that some of the evidence against them (or which they are entitled to see) may have been obtained from secret intelligence sources and methods. Disclosure of the evidence may jeopardize such sources and methods. In one terrorism prosecution, for example, the government had to disclose evidence, which had been obtained by an electronic intercept of a communication by the al-Qaida network. Within a short time after the disclosure, the network reportedly stopped using that channel of communication and the intelligence source was lost.

The obvious solution to this risk -- keeping the evidence secret from the terrorist defendant and his lawyers -- is prohibited by U.S. law. In non-criminal immigration proceedings to remove suspected terrorist aliens from the United States, however, the government has tried to use secret evidence when it was necessary to protect intelligence sources and methods. This use of secret evidence, however, may also be unlawful. At least three lower courts have rejected immigration decisions in such cases on the ground that using secret evidence violates the right of aliens to the due process of law guaranteed by the Constitution. But these decisions did not dictate whether the government is permitted to use secret evidence in other parts of the country, and the Supreme Court -- which could decide this question for the entire nation -- has not yet done so.

Consequently, before September 11, some members of Congress proposed a law which would have prohibited the immigration authorities from using secret evidence. After September 11, the support for such a law has, at least temporarily, evaporated. Courts must therefore continue to decide case by case whether secret evidence can be used in immigration proceedings until the Supreme Court or Congress settles the question.

CONCLUSION

Bringing terrorists to justice under the rule of law is a slow, cumbersome, inefficient business. It may even be an unsuccessful business, if essential evidence is excluded because it was obtained by unlawful surveillance, if the government decides that it cannot risk disclosure of intelligence sources and methods, or if the proof does not show guilt beyond a reasonable doubt (even though it shows that it is more probable than not that defendant is guilty). But as the Supreme Court once said in deciding to free a terrorist who had been unlawfully tried during the Civil War:

The power of punishment is alone [available] through the means which the laws have provided for that purpose, and if they are ineffectual, there is an immunity from punishment, no matter ... how much ... crimes may have shocked the ... country, or endangered its safety. By the protection of law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people.

In its quest for protection from terrorists, the United States will never give up the protection of law.

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(The opinions expressed in this article are those of the author and do not necessarily reflect the views or policies of the U.S. Government.)

(Editor's Note: This article was prepared for publication by Professor Raven-Hansen before President Bush, under the authority of the National Eemergency Act of 1976, issued a Military Order on November 13, 2001 allowing special military tribunals to try any individual, who is not a United States citizen, accused of terrorist attacks.)

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