COURTS, COMMISSIONS AND DETENTION AS TOOLS IN COMBATING OVERSEAS TERRORISM: CRITERIA FOR CHOOSING THE CORRECT FORUM

Abstract

As the ten-year anniversary of 9/11 approaches, the United States government remains undecided as to how it should proceed against those individuals believed to be responsible for the terrorist attacks. Both the Bush and Obama administrations, as well as Congress, have made policy announcements, promulgated Executive Orders and passed legislation that would allow for the prosecution of these individuals in either an Article III court (a criminal trial in federal district court) or before a military commission, or determine whether they should remain in military detention without trial for the duration of hostilities against al Qaeda and those entities responsible for 9/11. To this day, however, Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 plot, remains in U.S. military custody, the future of legal proceedings against him no more certain than they were in 2003, the year he was first detained by U.S. forces. Similarly, should Osama bin Laden or another high level al Qaeda leader be captured in the near future, no policy currently exists that would definitively determine which, if any, judicial forum is most appropriate for the disposition of their case. The lack of a coherent analytical framework that allows for consistent forum determinations when assessing the merits of a case against an overseas terrorist suspect has led to inconsistent decision-making and has fostered a growing credibility gap in U.S. counterterrorism policy. By applying a set of proposed criteria to individual cases, it is possible for policymakers to assess whether an Article III prosecution should be pursued in a given case or whether application of the criteria mitigates toward an alternative disposition, such as military commission or preventive detention.