Charles A. Shanor, Terrorism, Historical Analogies, and Modern Choices

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 24 No. 2

TERRORISM, HISTORICAL ANALOGIES, AND MODERN CHOICES

Charles A. Shanor^*

War is a challenge to law, and the law must adjust. It must recognize that the old wineskins of international law, domestic criminal procedure, or other prior frameworks are ill-suited to the bitter wine of this new warfare. . . . This war . . . demands new rules be written. Falling back on the comfort of prior practices supplies only illusory comfort.¹

Judge Evan Wallach argues that the United States has encountered various forms of terrorism before: pirates on the high seas, and wars against unidentified and unannounced enemies, partisans, and guerillas.²His Article discusses how the United States has dealt as a matter of law and otherwise, before federal courts, state courts, and in other venues, with piracy, irregular warfare, and other armed attacks by non-state actors.³Ultimately, his argument is that terrorism poses no new problems for the law, but only a new situation readily handled through the lessons learned and legal paradigms developed in earlier generations.⁴

Judge Wallach concludes that there is a "five-tier model" running through United States's responses to complicated and often compelling circumstances.⁵"American government authorities have dealt with the problems arising from captured non-state or questionable-state agents with a selection or combination of the following: (1) court based action; (2) international court action; (3) military court action; (4) military tribunal action; or (5) non-criminal status."⁶

Judge Wallach does not fully develop the differences between, or application of, these different tiers of processes for prosecuting captured non-state or questionable-state agents.⁷I share Judge Wallach's appreciation for history- and in turn, the lessons handed down by various legal and court decisions over centuries.⁸History is an essential component of law, so I will not respond by arguing that history is irrelevant. However, when I look at international terrorism from the September 11th attacks to the present, I see a landscape that is more fraught with difficulties than that surveyed by Judge Wallach.

This Article argues that there are three significant difficulties with solving today's problems using yesterday's examples. First, history comes with many examples and no clear method for deciding which historical analogy to use. Given the range of historical possibilities, which historical analogy provides the appropriate prism through which to view particular terrorists or acts of terrorism today? Should international terrorists be treated as ordinary criminals, pirates, brigands, military combatants, or civilians? If terrorism is treated under one category for some purposes, does that preclude treatment in a different category for another purpose? What would the consequences be of varying choices of analogies? Second, when adopting an analogy, may society and the courts engage in legal innovations to adjust to circumstances that arguably differ from those of the situations to which they are analogized? May courts, for example, bend otherwise-applicable rules in criminal cases, habeas actions, or civil suits which involve allegations of terrorism? If the answer to this question is yes, how much should these rules bend and what consequences will such bending have for the legal system as a whole? Third, do changes in the world make at least some modern terrorists different from-and in need of different treatment than-partisans, pirates, and Pancho Villa? Are modern weapons of mass destruction and instantaneous electronic communications, for instance, technological developments that necessitate altering rules developed in and applied to earlier eras? I will take each of these three issues in turn.

I. WHICH ANALOGIES APPLY TO TERRORISM?

Criminal law is clearly a useful tool today against terrorists,⁹as it has been historically against pirates.¹⁰The problem is that history does not provide clear answers to whether criminal processes or other tools are most appropriate for solving problems of violence against a society by particular non-state actors. Intelligence gathering and military force, for example, are tools that bear little relation to criminal law used against terrorists.¹¹Which tool should be used in a particular situation? What are the pluses and minuses of each tool? And how do these tools relate to the criminal process, in whichever tier it appears?

The federal courts have convicted and sentenced close to 400 individuals in unsealed cases involving international terrorism since September 11th.¹²Many of these cases have involved very significant sentences, usually to be served in supermax federal penitentiaries.¹³However, the fact that criminal processes were successfully applied to partisans, pirates, and brigands does not mean that the courts and criminal law processes are the right approach to dealing with specific terrorist groups-al Qaeda, for example.

Three shortcomings of even a robust criminal process are evident. First, few terrorists will be deterred by the conviction and sentencing of other terrorists.¹⁴Indeed, martyrdom is desired by some.¹⁵Faisal Shahzad, the would-be Times Square bomber sentenced to mandatory life imprisonment on October 5, 2010, expressed little remorse.¹⁶In addition, his imprisonment will not likely end similar efforts by others who believe that defeat of the United States by Allah is imminent.¹⁷Second, after-the-fact conviction is no substitute for intelligence surveillance efforts to prevent attacks. Surveillance of foreign terrorists and terrorist organizations has not been treated as legally equivalent to gathering evidence with which to prosecute cases against terrorists.¹⁸Third, courts have been utterly unsuccessful in disrupting al Qaeda's training camps and recruitment efforts, or even its operational planning.¹⁹As others have noted,²⁰the trials in the 1990s concerning the first efforts to bomb the World Trade Center in New York yielded convictions of the Blind Sheik and others (including Osama Bin Laden, in absentia) without adversely affecting al Qaeda's planning and operations.²¹For disrupting such enterprises, military force has been an essential component.²² on Terrorists than Military Detention, CTR. FOR AM. PROGRESS (Jan. 20, 2010), http://www.americanprogress. org/issues/2010/01/criminal_courts_terrorists.html.

This does not mean criminal process is a failed tool for dealing with international terrorism-just that this tool alone is inadequate or at least less adequate than it has been for dealing with other systemic scourges such as organized crime or piracy.²³

For the remainder of this Part, I will constrain the focus of my comments to Judge Wallach's "five-tier model" of criminal forums and will argue that history does not tell us with any clarity which forum is most appropriate for criminal law prosecutions of particular terrorists. That is why there was vigorous and adverse response to Attorney General Eric Holder's decision to prosecute Khalid Sheikh Mohammad in federal court in Manhattan rather than in a military tribunal in Guantánamo Bay.²⁴That is also why, conversely, there has been no such response to the prosecution in the Southern District of New York of lesser figures like Ahmed Khalfan Ghailani, the accused bomber of the U.S. embassies in East Africa.²⁵Both defendants are aliens, both are members of al Qaeda, both are implicated in major actions against the United States, and arguably, the evidence against each is such that the federal courts would not preclude evidence that the prosecution thinks is needed to obtain convictions.²⁶

Would Judge Wallach argue that the differences in public reaction are irrational, that the public fails to appreciate which is the most appropriate forum based on historical analogies? Or is the problem not one of drawing a general analogy to pirates or brigands for terrorists in general, but rather of assessing multiple components of which specific forum is best suited to a particular prosecution?²⁷

To illustrate how tricky analogies are for dealing with terrorists, Part I of this Article briefly examines a few judicial opinions in four areas. First, Subpart A examines cases that seek to draw lines between detaining criminal suspects and military detention. Second, Subpart B looks at cases considering when to try a terrorist suspect in federal court versus trying the suspect before a military tribunal. Third, Subpart C explores a specific analogical difficulty in Judge Wallach's typology, that of deciding whether terrorism is (like piracy) a crime committed against the law of nations.²⁸Finally, Subpart D compares statutes penalizing Communist Party membership with statutes criminalizing

"material support" for terrorism.²⁹

A. Detaining Criminals Versus Detaining Enemies

Criminals are arrested, arraigned, tried, convicted, and sentenced; enemy combatants are detained until the end of hostilities and are usually not tried for anything, even if the combatant killed members of the capturing force. In Hamdi v. Rumsfeld, the Supreme Court found a habeas petitioner who carried arms in a foreign conflict zone to be an enemy combatant.³⁰Because Hamdi was captured while armed on the battlefield, he could be held until the end of hostilities without trial.³¹In Padilla v. Hanft,³²the Fourth Circuit Court of Appeals similarly found combatant status appropriate for Jose Padilla, who had trained with and fought for al Qaeda in Afghanistan but who was arrested getting off an airplane in the Chicago O'Hare International Airport rather than on an Afghani battlefield.³³

The really tough case, al-Marri v. Pucciarrelli, involved an alleged "sleeper cell" terrorist who was a resident alien arrested and then placed in military custody as an enemy combatant.³⁴Al-Marri, a citizen of Qatar living in Peoria, Illinois, with his wife and children while working on a master's degree, had never been in a combat zone nor taken up arms against...