by Jack Lee
Recent polling shows 2/3rds of all American’s feel a criminal trial for the 9/11 terrorists is a bad idea. As a point of law members of Al Qaeda have been declared illegal enemy combatants (1) and they are not guaranteed access to our courts. They are however entitled to a Military Tribunal.
The Supreme Court decision Hamdi v. Rumsfeld, 28 June 2004, the Court recognized the power of the government to detain unlawful combatants, but ruled that detainees must have the ability to challenge their detention before an impartial judge. There is nothing in law to prohibit an unlawful combatant from being allowed access to trial in a civilian criminal court, however this is an option made possible only by a Presidential order.
The downside of a criminal trial is that illegal combatants could use our Constitutional guarantees against us, such as full access to all evidence being used against them and a right to confront their accusers. The prosecution is bound by the Rules of Evidence and therefore some evidence that may be legal in a Military Tribunal may not be legal in a criminal court, such as a confession made under duress or evidence obtained through an illegal search. A criminal justice system can use this trial’s outcome to establish precedence for future trials. i.e., illegal combatants shall be afforded a criminal trial. Aside from the legal downside, the media has full access to such a trial and this affords the defendant’s a large podium. This could prove to be highly beneficial for Al Qaeda. Lastly, the cost of court security and the risk of a terrorist attack are exceptionally high. There is also a risk that a criminal trial could be viewed by the world as a show trial, devoid of any real justice or worse, that the defendants might be set free or appeal later and win a reversal.
The upside is, it demonstrates that USA affords access to our justice system and Constitutional guarantees to all persons. This exemplary and courageous gesture could show the world how far this nation is willing to go in the pursuit of justice, even when confronting those who wish us all death. We will have set a high standard and this might encourage a more humanitarian approach within Islamic nations.
(1) An unlawful combatant is a civilian who directly engages in armed conflict in violation of International Humanitarian Law and against a sovereign nation.