Why Civilian Trials of Islamic Terrorists Can Damage The War on Terror

In an article in the Wall Street Journal, Victoria Toensing (former chief counsel for Senate Intelligence committee) cited four reasons why trying terrorists in civilian courts is dangerous and not applicable post 9/11. Constitutional protections have evolved since WW2 for civilian criminals like bank robbers but were never meant for enemy combatants like the Islamic Terrorists.


1. 1963: the Supreme Court formulated the Brady rule which requires the prosecution to give access to every witness and piece of evidence that might directly or indirectly place into question a witnesses credibility. This can lead to sensitive intelligence information being turned over to the terrorist and passed on to their network like Al Qaeda. The civilian trial of 9/11 hijacker Zacarious Moussaoui dragged on for three-and-a- half years while he demanded access to other captured terrorists. KSM and other captured terrorists are sure to take advantage of the Brady rule.

2. 1975: the supreme Court ruled that defendants in civilian trials have the right to represent themselves. Moussaoui took advantage of this rule and used the court as a platform for spewing his propaganda. KSM and others can demand to represent themselves and use the court for a platform for propaganda.

3. 1980: the Classified Information Procedures Act (CIPA) allows defense attorneys who have security clearance to be given classified documents, but does not allow for a defendant representing himself. So, Moussaoui was demanding such documents. The would have had to dismiss the case or order the documents turned over. In the Moussaoui case, he pleaded guilty before documents were turned over but in the upcoming KSM and other civilian trials, the CIPA can be used to give Al Qaeda access to classified documents.

4. There is a century old "exclusionary rule" which prohibits the prosecution from using credible evidence if the police erred in any way in collecting the evidence. So, a terrorist captured in a foreign land might have physical evidence thrown out if their was no search warrant or if he was not given Miranda warnings or if hearsay evidence was collected in the foreign country.

These protections for civilian criminals would not be available to enemy combatants and war criminals being tried in military courts. In 2008, the Supreme Court sanctioned military commission procedures under the Military Commission Act.

Until 9/11, various administrations were uncertain how to handle terrorists and the United States had not understood that we were at war with Islamic Terrorism. Even after 9/11, there was ambiguity on how to prosecute terrorists, but this has been clarified but the Military Commission Act and now there is absolutely no reason to bring enemy combatants and war criminals to trial in civilian courts except for political pandering to the left-wing and ACLU types in America.

It is insane to think that Al Qaeda, Taliban, Hamas, Hezbollah and other terrorist groups would change their beliefs about killing Americans and perhaps lay down their arms if they saw that their captured comrades were receiving a "fair" civilian trial rather than a military trial.