Prosecuting the 9/11 Cases - Can our courts do it fairly, effectively, and without damage to our security?

Talk radio and the blogosphere are filled with speculation: we will have to give Miranda warnings in the mountains of Afghanistan; Khalid Shaikh Mohammed and the other 9/11 defendants will obtain vital intelligence secrets from the `Brady’ materials (exculpatory evidence) that the prosecutors will have to provide the defense; that a New York venue gives the al Qaeda defendants the platform they seek, etc.

The lawyers from Human Rights First, in an updated report authored by James Benjamin and Richard Zabel at Akin Gump, conclude that our courts are what we seek: effective, fair, and secure. From their executive summary:

In total, we have analyzed 119 cases with 289 defendants. Of the 214 defendants whose cases were resolved as of June 2, 2009 (charges against 75 defendants were still pending), 195 were convicted either by verdict or by a guilty plea. This is a conviction rate of 91.121%, a slight increase over the 90.625% conviction rate reported in May of 2008.

Our research also found:

√ The statutes available to the Department of Justice for the prosecution of suspected terrorists continue to be deployed forcefully, fairly, and with just results.

Courts are authorizing the detention of terrorism suspects under established criminal and immigration law authority and, now through the time-tested common law system, are delimiting the scope of military detention to meet the demands of the current circumstances.

√ The Classified Information Procedures Act (CIPA), although subject to being improved, is working as it should: we were unable to identify a single instance in which CIPA was invoked and there was a substantial leak of sensitive information as a result of a terrorism prosecution in federal court.

√ The Miranda requirement is not preventing intelligence

professionals from interrogating prisoners, and recent court decisions have not interpreted Miranda, even in the context of foreign law enforcement interrogations, as a bar to criminal prosecution.

√ Prosecutors are able to make use of a wide array of evidence to establish their cases.

√ Convicted terrorists continue to receive stiff

sentences.

√ The Federal Bureau of Prisons has been detaining accused and convicted hardened terrorists in U.S. prisons on a continuous basis since at least the early 1990s without harm to the surrounding communities.

In sum, the federal courts, while not perfect, are a fit and flexible resource that should be used along with other government resources—including military force, intelligence gathering, diplomatic efforts, and cultural and economic initiatives—as an important part of a multi-pronged counterterrorism strategy.

p.s. Jim Comey (former Deputy AG) and Jack Goldsmith (former Assistant AG) both during the Bush years defend as reasonable AG Holder's decision to prosecute in federal court, in a Washington Post op-ed here

p.p.s. The ABA has endorsed the Attorney General's decision. the link to the ABA Journal page and the text of the letter to Eric Holder is HERE. - GWC 11/25/09