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 terrorismmore often than not Islamic terrorismgenerate
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).
TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol 21:175
176
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 perspectivewhen 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”).

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