Constitution Check: Should terrorism trials only be held in military tribunals?


“Last month, the Justice Department achieved a major milestone when we secured the conviction of Salaiman Abu Ghaith, the son-in-law of Osama bin Laden and a senior member of Al Qaeda, on terrorism-related charges [in a trial in federal court in New York City].  The verdict has proven that proceedings such as this can safely occur in the city I am proud to call my hometown, as in other locations across our great nation.  We never doubted the ability of our Article III court system to administer justice swiftly in this case, as it has in hundreds of other case involving terrorism…It would be a good thing for the country if this case has the result of putting that political debate to rest.”

 – Attorney General Eric Holder, in testimony on April 8 before the House Committee on the Judiciary.

“I applaud the judge and the jury; they did their job.  But we’re not fighting a crime here; we’re fighting a war.  This guy is so connected to the organization.  It was a treasure trove of potential information, and we blew it….We lost an opportunity here with this guy.”

– Senator Lindsey Graham, South Carolina Republican, commenting on the verdict and arguing that Ghaith should have been held as an enemy combatant and questioned for intelligence gathering purposes, as quoted in The New York Times on March 27.  When the trial of Ghaith began, Graham and other Republican senators argued that such cases should be tried in military commissions.

“The normalcy of this case, the lack of drama, the by-the-book way that the judge handled it in terms of pointing to the law at every turn show that, with rare exceptions, the future of terrorism trials lies in the federal courts.”

Karen J. Greenberg, director of Fordham University’s Center on National Security, as quoted in the same story in The Times.


As long ago as 1866, just after the Civil War, the Constitution stood for the principle that, if the civilian courts were open and functioning during wartime, trials of civilians charged with crimes of war should be tried in those courts, not in military tribunals.  That was the Supreme Court’s decision in the case of Ex parte Milligan.

The Court’s lead opinion back then said: “No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.  Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false.”

Since the “war on terrorism” began after the attacks on the U.S. on September 11, 2001, the Supreme Court has not had occasion to say where individuals charged with war crimes based on terrorist acts should be tried.  It has not yet had an opportunity to rule on the constitutionality of diverting some of these cases from civilian courts to the military commission system set up at Guantanamo, Cuba; no conviction in that system has yet reached the court for review.

The Court did say, in 2004, that the government has the power to designate a terrorism suspect – citizen or foreign national – as an “enemy combatant,” and has the authority to detain that individual on that basis.  And, although that designation is the government’s basis for pursuing charges against such individuals in a military commission, the Supreme Court has yet to say whether such a designation necessarily puts that individual beyond the civilian court system.

Until the Justices do weigh in on this issue, the debate over the selection of a forum for terrorism trials is likely to continue to be buffeted about in political discourse.

Those, like Senator Graham, who oppose civilian trials in such cases, make basically three arguments: the civilian courts give terrorism suspects more rights than they should have and that will make punishment less likely, the conduct of such trials outside of a military base will invite terrorist violence in American cities, and treating them as criminals rather than as wartime enemies diminishes or eliminates the chance to interrogate them for intelligence about terrorism operations.

The first two of those arguments probably have been discounted, by the successful prosecution of many terrorism cases in civilian courts, and those trials have not been surrounded or disrupted by violent uprisings, inside courthouses or outside.

That leaves the needs of intelligence argument.  During the trial of bin Laden’s son-in-law, there actually was evidence that he had been questioned quite extensively by U.S. investigators after his capture overseas and before he was brought to the U.S. for prosecution.

Senator Graham told The Times that he thought that was inadequate, commenting that he should have been questioned over “weeks and months.”  A former prosecutor, interviewed by The Times, countered that it was often true that such questioning yields “a tremendous amount of credible and actionable intelligence.”

In this debate, no one appears to be arguing that the place where a terrorism suspect is tried should depend upon whether or not that individual is a U.S. citizen.   Once charged with crimes that are within the reach of a civilian court, even a foreign national would appear to be constitutionally entitled to be tried in a regular court, with all of the courtroom rights that come with such proceedings.

In reality, that approach has produced hundreds of guilty verdicts.  And, it is clear, the current government is going to continue to use that system most of the time, even as the political disagreement over its wisdom goes on.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.