Trials for Terrorists

• Published date: 01 May 2007
• Author: Brian Levin
• Date: 01 May 2007
• DOI: 10.1177/1043986207301366
• Subject Matter: Articles

195

Journal of Contemporary

Criminal Justice

Volume 23 Number 2

May 2007 195-218

© 2007 Sage Publications

10.1177/1043986207301366

http://ccj.sagepub.com

hosted at

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Trials for Terrorists

The Shifting Legal Landscape

of the Post–9/11 Era

Brian Levin

California State University, San Bernardino

In the post–9/11 period, the United States government employed alternate methods to

deal with those accused of pursuing terrorism or aiding the nation’s enemies. In an

effort to thwart terror attacks, officials employed both civilian and military authority to

investigate, apprehend, detain, and prosecute terror suspects. At first the Bush admin-

istration was granted considerable deference by the public and other branches of gov-

ernment on a wide variety of measures, including detainments. Eventually, both the

courts and Congress reasserted themselves to limit the broad authority that the admin-

istration initially wielded over suspected terrorists. In particular, the ability of the mil-

itary to detain American citizens in most circumstances was all but eliminated, and its

near complete authority over noncitizens was significantly restricted as well.

Keywords: terrorism; military tribunals; enemy combatants; Supreme Court; Geneva

Conventions

Following the devastating attacks of September 11, 2001, that killed nearly 3,000

Americans, the U.S. government significantly altered both the laws and methods

used to investigate, detain, and prosecute those suspected of ties to terrorism.

Existing criminal laws, investigative tools, and prosecutorial methods were greatly

enhanced to aid civilian authorities. Perhaps most controversial, however, was the

Bush administration’s effort to circumvent the traditional oversight role of Congress

and civilian courts over certain terror suspects through an aggressive assertion of

executive authority. The administration based its position on an expansive reading of

congressional enactments and precedent, national security exigencies, and the pres-

ident’s authority as Commander-in-Chief. Although the president’s unilateral author-

ity was eventually challenged and curtailed, by early 2007, legal and political

compromises enabled the Bush administration to retain most of its ability to indefi-

nitely detain many foreign nationals with alleged terrorist links.

Shortly after 9/11, Congress granted the executive branch vast powers to protect

national security. On September 18, 2001, a joint resolution of Congress was passed

giving the president broad authority to use force against those responsible for the ter-

rorist attacks executed the previous week:

196 Journal of Contemporary Criminal Justice

That the President is authorized to use all necessary and appropriate force against those

nations, organizations, or persons he determines planned, authorized, committed, or

aided the terrorist attacks that occurred on September 11, 2001, or harbored such orga-

nizations or persons, in order to prevent any future acts of international terrorism

against the United States by such nations, organizations or persons. (Authorization for

Use of Military Force [AUMF], 2001)

Proponents of expansive presidential powers in the war on terror maintained that

the AUMF did more than merely provide for a legal basis for the immediate military

response against the Taliban and al Qaeda. These proponents argued that the AUMF

signaled congressional deference to the administration on a range of other matters,

from aggressive intelligence gathering to the treatment of detainees (Golden, 2005).

In the weeks that followed the 9/11 terrorist attacks, civilian law enforcement author-

ities arrested or detained more than 1,000 people in the United States. Although existing

federal law and traditional detention rationales were relied on, the scope of the seizures

and the expansive application of authority were unprecedented in recent decades. The

legal bases for these domestic detentions were derived from three basic sources: immi-

gration violations, various criminal charges, and material witness designations.

However,the sweeping scope coupled with the sometimes secretive and chaotic nature

of the arrests created fear within many immigrant communities and drew sharp con-

demnation from advocacy organizations such as the American Civil Liberties Union

(ACLU). Some commentators even drew comparisons to previous eras when individ-

ual liberties were curtailed, such as the Alien and Sedition Acts period,the post–World

War I “red scare,” and the World War II internments of Japanese Americans. The

Department of Justice reported that by June 2002, more than 1,200 people had been

arrested or detained by domestic civilian authorities since the attacks—with 752 being

held on immigration charges and the remainder for various other charges. At least 74

people were still incarcerated through June 2002, including 38 who were being held

on charges involving immigration violations (Siemaszko, 2002).

The newly appointed FBI director, Robert Mueller,vigorously denied accusations

of racial profiling. Mueller did acknowledge, however, that many post–September 11

investigations of international terrorism involved those who “share a common ethnic

and religious background” (Mueller, 2002). The Constitution’s 14th Amendment

prohibits using race or ethnicity as a general element to establish criminal suspicion.

Race or ethnicity, however, can be used to the extent that it is part of an individual-

ized description of a particular suspect.

The USA PATRIOTAct

On October 26, 2001, President Bush signed a controversial and wide-ranging

antiterrorism legislative package named the Uniting and Strengthening America by

Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of