New Report Reaffirms Federal Courts Can Handle Most Terrorism Cases

Human Rights First has just released a new report updating its previous study of criminal terrorism cases prosecuted since the early 1990s. Once again, it concludes that the federal courts are fully capable of prosecuting complex and sensitive cases of international terrorism.

The organization’s previous report, issued last year, was written by two former federal prosecutors who examined more than 120 major international terrorism cases and their outcomes. In the new report, the same former prosecutors follow up on their previous study by analyzing the process and outcomes of 119 cases involving 289 defendants. They discovered that the federal government has a high success rate in federal court on terrorism cases — winning convictions in more than 91 percent of cases. Those convicted and serving prison time, meanwhile, haven’t harmed the surrounding communities, notwithstanding the warnings of lawmakers who’ve opposed transferring terror suspects to the United States — even to maximum-security prisons.

The remaining question, though, is one Glenn Greenwald asked on a conference call with the report’s authors and Human Rights First Executive Director Elissa Massimino today: whether these cases are similar enough to the ones the Obama administration is saying it can’t try in federal court — those people against whom there isn’t admissible evidence, yet the administration says are “too dangerous” to release. If not, does the report have any bearing on the question of what to do with them?

Given that the administration hasn’t yet named any of those cases, but speculates that they exist, it’s impossible to know for sure. But as James Benjamin, one of the report’s authors, explained, the cases he examined represent “extraordinarily serious acts of violence against the United States carried out all over the world,” including embassy bombings, the previous world trade center bombing, Zacarias Moussaoui (convicted in connection with the 9/11 attacks) and Richard Reid (the “shoe bomber”). Those cases presented “some very difficult practical and legal issues” that the courts have been able to handle, he said.

Still, Benjamin qualified that finding: “That’s not to say that the justice system can handle every case,” he said, and praised the Obama administration for undertaking a case-by-case analysis.

So where does that leave us? President Obama and his Detention Policy Task Force have acknowledged that the federal courts can handle most terrorism cases. They’ve also said that violations of the laws of war should instead — or in addition — be handled by military commissions. That’s not specifically undermined by the Human Rights First report’s finding.

Still, what about that supposed third category? By saying that not every alleged terrorist can be tried in federal court, Human Rights First is admitting that this category of people may exist, as the Obama administration claims. But neither the human rights lawyers nor the government has so far been able to come up with a reasonable solution for what to do about them.