The Message and Means of Modern Terrorism Prosecution

• Author: Wadie E. Said
• Position: Assistant Professor, University of South Carolina School of Law
• Pages: 175-195

The Message and Means of the Modern Terrorism

Prosecution

Wadie E. Said

∗

I. INTRODUCTION .................................................................................... 175

II. INTERROGATIONS ............................................................................... 177

III. MATERIAL SUPPORT TO TERRORISM .................................................. 187

IV. THE USE OF INFORMANTS AS AN INVESTIGATIVE TOOL

IN THE TERRORISM CONTEXT ............................................................ 190

V. SENTENCING AND CONFINEMENT ....................................................... 193

VI. CONCLUSION ....................................................................................... 194

This Article, written in conjunction with Transnational Law and

Contemporary Problems’ 2011 Symposium on Ten Years After 9/11:

Rethinking Counterterrorism, stemmed from a panel that examined “how the

United States and other Western countries receive Islamic culture in their

societies and how they export their Western cultures to the Islamic world, in

each case to assess the degree to which their cross-cultural behaviors

mitigate or worsen anti-Western terrorism from the Middle East and

Central/South Asia and to recommend solutions if needed.”1 This contribution

focuses on the criminal terrorism prosecution in the United States, and takes

up the panel’s theme by examining what such prosecutions say about

American attitudes toward Islam. In so doing, my goal is to analy ze how

allegations of terrorism—more often than not Islamic terrorism—generate

investigations, prosecutions, and ru lings that demonstrate a great de al of

deference to the government’s role as counterterrorist actor, all the wh ile

revealing official U.S. attitudes tow ard Islam to be conflicted.

I. INTRODUCTION

In the wake of the first decade of the United States declaring a “war on

terror,” there has been a great deal of focus on novel questions relating to the

advancement of a military campaign against a non-state enemy that operates

without regard to international borders. A s a result, both courts and

commentators have considered issues existing at the nexus of American

constitutional law, international law , humanitarian law, and human right s

law, such as the definition of torture, the use of military tribunals and the

*Assistant Professor, University of South Carolina School of Law. Thanks to Professors Burns

Weston and Adrien Wing for inviting me to the 2011 Symposium. Thanks also to Prof. Laura

Nader for her comments on the subject and substance of thi s paper.

1 Symposium 2011, TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS, http://www.uiowa.edu/

~tlcp/symposium_2011.htm (last visited May 22, 2012).

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availability of habeas corpus, and, more recently, the legality of drone

warfare and assassination (“targeted killing”).2 Domest ically, however, the

United States has seen a proliferation of cr iminal laws and concomitant

prosecutions that raise a series of questions in the ir own right. These

prosecution stand apart from the more protracted debates on the

extraordinary legal measures mentioned above, in that domestic criminal

prosecutions are jurisdictionally far le ss controversial. But to address the

most important question,, we must ask what we have learned as a society

from the modern terrorism prosecution. In other words, what is the message

of modern terrorism prosecution?

To answer this question we can certainly look at who the U.S.

government has prosecuted and what results the government has obtained so

far. But, more importantly, we must app reciate what allegations of terro rism

have meant for U.S. law. When coupled with a loose and general

identification of terrorism with Islam, the message of the modern terrorism

prosecution has essentially been that the federal courts will stretch the

boundaries of what is legally perm issible—both from a criminal law and a

criminal procedure perspective—when the defendant is charged with

terrorism-related crimes. In analyzing the modern record of rulings adverse

to terrorism-linked defendants, we can discern a trend that threatens the

impartiality of the criminal process as a forum for confronting non-state

political violence. This is a matter of gr eat importance, as the alternative to

trials in Article III federal courts is the oft-c riticized and problematic military

tribunal model.

Generally speaking, commentators and p ractitioners of diverse

backgrounds have praised the criminal tri al model as optimal for trying

suspected terrorists.3 However, a revie w of several laws and practices that

have received legal imprimatur in the name of fighting terrorism reveals a

number of improprieties and questionable decision s that potentially subvert

the credibility of the criminal process. In this Article, I will begin the

discussion of this phenomenon with a review of the standards governing

interrogations of criminal terrorism suspects, then proceed to analyze the ban

on providing material support to de signated foreign terrorist organizatio ns

2 See Charlie Savage, U.S. Law May Allow Killings, Holder Says, N.Y. TIMES, March 6, 2012, at

A18; Kenneth Anderson, Targeted Killing and Drone Warefare: How We Came To Debate

Whether There is a ‘Legal Geography of War,’ (Washington College of Law, Working Papers No.

2011-16, 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1824783.

3 See generally David S. Kris, Law Enforcement as a Counterterrorism Tool, 5 J. NAT. SEC. L. &

POL. 1 (2011) (former Assistant Attorney General for National Security making the case for the

criminal model); Kelly Anne Moore, Editorial, Take Al-Qaeda to Court, N.Y. TIMES, Aug. 21,

2007, http://www.nytimes.com/2007/08/21/opinion/21moore.html (former lead prosecutor of

terrorism suspects advocating the criminal model). But see Kim Lane Scheppele, Law in a Time

of Emergency: States of Exception and the Temptations of 9/11, 6 U. PA. J. CONST. L. 1001, 1025

n.84 (2004) (arguing that even pre-9/11 terr orism trials generated rulings that gave “human

rights lawyers pause”).