As the debate drags on over whether to try alleged terrorists held in Guantanamo Bay in military commissions or federal courts, the pressure to find a politically palatable option is building. And the government’s solution may be the creation of a terrorism court, experts say.
“I think it’s going to probably happen because they’re going to have to deal with somewhere in the neighborhood of 50 really tough cases where they’re not going to be able to prosecute these cases in the traditional methods,” said Charles E. Tucker Jr., who is executive director of the International Human Rights Institute at DePaul University.
Tucker said current federal law is sufficient to try terror suspects, referencing Attorney General Eric Holder’s testimony that hundreds of terror-related crimes have already been prosecuted in federal court.
“In my opinion, you don’t have a legal necessity for a terrorism court, and we don’t have an evidentiary necessity for a terrorism court,” Tucker said. “So that leaves political necessity.”
And Tucker said that necessity is primarily safety, which is a legitimate concern. He said trying terror suspects in federal court could pose a threat to judges, witnesses and other actors, not to mention the public.
Richard Friedman, president of the National Strategy Forum, said military commissions have looser rules to accommodate the difficulties of trying more sensitive cases, including allowing prosecutors to present evidence without divulging their sources. The Obama administration wants to avoid using them to try the alleged 9/11 plotters, including Khalid Sheikh Mohammed, though many conservatives are pushing back.
“[President Barack Obama] doesn’t use the word ‘war on terror’ deliberately because he does not want to indicate that they should be sent before a military commission, so he’s used every other word imaginable,” said Matthew Lippmann, who is a professor of criminology, law and justice at the University of Illinois in Chicago.
But Tucker said creating a terrorism court would give at least the appearance of false justice, which he said contradicts American values.
“You’re dealing with the perception that you’re meeting with a special judge that’s designed just for you. There’s a perception that you’re not getting the same kind of justice.”
Tucker said the government could look to the British appellate courts in Northern Ireland or the Israeli military tribunals to see what an American terrorism court system might look like. He said he visited the Israeli tribunals last year and described the prosecutors as “pretty demoralized.”
