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By
VICTORIA TOENSING
WSJ.com
In the 1980s, the Reagan administration established a policy
for trying terrorists in civilian courts. Why did it do so? And why shouldn't we
try alleged September 11 mastermind Khalid Sheikh Mohammed and Christmas Day
bomber Umar Farouk Abdulmutallab in these courts?
I was the official
responsible for creating the Justice Department's terrorism unit in 1985. I know
the basis for its policy of trying terrorists in federal courts-and why it is no
longer applicable.
In the 1970s and early 1980s, terrorists were
targeting Americans abroad, but the United States could not prosecute them
because our courts did not have jurisdiction over acts committed outside of our
borders. Countries that had jurisdiction either refused to prosecute or, after a
conviction, allowed the terrorists to escape. (Recall U.S. Ambassador to Sudan
Cleo A. Noel Jr., who was murdered by eight Black September terrorists in 1973,
three of whom disappeared from an Egyptian prison.)
Thus, the Reagan
policy was borne of the need to establish international prosecution of
terrorism. In December 1984, Congress passed legislation giving our courts
jurisdiction over certain terrorists acts committed outside our borders. The
administration then began demanding extradition, publicly and adamantly,
whenever an American was a target of terrorism-thereby pressuring foreign
governments to give us the perpetrator or carry out the prosecution.
The
first time was in response to the June 1985 hijacking of TWA Flight 847, when
four Islamic terrorists murdered Navy diver Robert Stethem. One of the
terrorists was Mohammed Ali Hamadi. We quickly charged him and his three
associates with murder and other crimes.
In January 1987, Hamadi was
arrested at a Frankfurt airport for another offense, and when the Germans
discovered he was wanted for the TWA hijacking, they had an "Oh damn" moment. I
know their angst, because I was responsible for the Justice Department's
negotiations to extradite Hamadi.
Citing European opposition to capital
punishment, Germany refused to extradite unless we took the death penalty off
the table. We agreed to that demand, but Germany still refused extradition. In
the end, under public pressure from the U.S., Germany tried Hamadi and found him
guilty of murder, possession of explosives, and air piracy. Unfortunately, he
was released in 2005 and now walks free somewhere in the Middle East.
Following this case, other countries, including Pakistan, were forced to
prosecute terrorists or hand them over to us. Our pressure to extradite gave
these countries a face saving "way out": They could, and did, declare it would
be worse to turn them over to those "devils," the Americans.
We did not
care about the opprobrium. We had forced other countries to prosecute terrorists
by asserting we could do so in our courts.
That long-ago issue is resolved and not relevant today. Since
9/11 we know that terrorists want to destroy our democratic government and
murder us. And we face this challenge in a legal landscape different since last
we declared war in the 1940s. Constitutionally evolving protections and
statutory procedures have created a rich array of legal maneuvers that
terrorists can use and abuse, not to ensure acquittal of an innocent but to
thwart that very system.
In 1963 the Supreme Court formulated the Brady
rule, which requires the government to provide a defendant with any evidence
that could be "exculpatory." That means the prosecution must give the defense
access to witnesses and documents that could directly absolve him (another
person's confession) or indirectly impeach the witness's credibility (how much
he was paid for travel).
It's largely up to the defendant to decide what
he should receive. If a prosecutor objects to sharing certain information, a
judge will make the call on what must be turned over to the defense. In a
civilian terrorist trial, this can lead to sensitive intelligence being turned
over to a defendant or, at least, make it difficult for the prosecution to
protect such information. That's what happened in the Moussaoui case.
Despite claims to the contrary, the civilian trial of the so-called 20th
9/11 hijacker Zacarious Moussaoui was not a success. For three-and-a-half years
Moussaoui twisted the prosecution into a legal pretzel, using Brady to demand
access to captured enemy combatants. When prosecutors balked at going along with
a court order to grant Moussaoui such access, a judge prohibited the prosecution
from pushing for the death penalty.
In 1975, the Supreme Court held that
defendants have a constitutional right to represent themselves. Moussaoui took
that right and upped it a notch by demanding, under the 1980 Classified
Information Procedures Act (CIPA), that he be given classified documents. The
CIPA allows for defense attorneys who have security clearances to gain access to
summaries or redactions of classified information. But it does not anticipate
providing such information to a suspected terrorist who is representing himself.
Under CIPA, when the prosecution will not comply with a court order to turn over
information, the case is to be dismissed.
While Moussaoui's issues were
being sorted out in the courts, he pleaded guilty to terrorism conspiracy. When
a jury did not impose the death sentence he wanted, Moussaoui appealed. He
argued that because Brady and CIPA were violated, he was forced to plead guilty.
That appeal was rejected by the Fourth Circuit in a 78-page opinion, which found
that because he pleaded guilty Moussaoui waived his right to object to
violations of Brady and CIPA. What would have happened had Moussaoui not pleaded
guilty and instead proceeded to trial as KSM apparently wants to do?
There is one other relevant constitutionally grounded protection, the
century-old exclusionary rule. It prohibits the government from using otherwise
credible evidence when a court determines that a police officer erred in
collecting it. In a civilian court, KSM will likely demand that the prosecution
be denied the use of physical evidence collected when he was apprehended in
Pakistan, because there was no search warrant. He was also not given his Miranda
warnings, so he'll demand that none of his statements be used against him.
If he is instead tried under the Military Commission Act, prosecutors will
be able to use both physical evidence from his apprehension as well statements
made without Miranda warnings. Hearsay evidence will also be easier for the
prosecution to use.
President Franklin D. Roosevelt eschewed a civilian
court for eight German saboteurs who waded onto our Atlantic shores determined
to blow up war production factories. In opting for trial by military commission,
FDR penned his own rules, including a right to appeal only through him. Unlike
today's Supreme Court, the World War II Court approved the convictions and
executions.
For seven years the rules for a military commission were in
limbo because the Supreme Court did not approve the executive branch's written
procedures or Congress's subsequent first attempt to write others. Not until
2008 did it sanction military commission procedures under the Military
Commission Act.
We now have a system that provides due process while
recognizing there are differences between enemy combatants and bank robbers. We
should use it.
Ms. Toensing was chief counsel for the
Senate Intelligence Committee and deputy assistant attorney general in the
Reagan administration.