Lawyers Share The Bench In Terrorism Cases

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SCOTT SIMON, HOST:

This is WEEKEND EDITION from NPR News. I'm Scott Simon. We're going to talk now about terrorism and the law, and how two allied countries are trying to figure out just what to do with terrorist suspects. In a moment, a case in Great Britain. But first, a situation in the United States. Until recently, accused terrorists had a very good chance of facing trial in a federal court. A new law could change that. Foreign terrorist suspects would be sent to military commissioners unless the president signs a special waiver. NPR's Dina Temple-Raston looks at how the Obama administration will decide which cases go where.

DINA TEMPLE-RASTON, BYLINE: National security officials used to sit around a conference table at the Justice Department and discuss detainee cases. Representatives from the Defense Department, the CIA and Justice would sit and look at case files and decide whether a detainee should be tried in a federal court or a military one.

LISA MONACO: And there was a protocol that was developed specifically for deciding which forum, when both were available, for those particular set of cases.

TEMPLE-RASTON: Lisa Monaco is the head of the national security division at the Justice Department. She said those conversations revolved around evidence and jurisdiction; where was the detainee picked up, who interrogated him, that sort of thing.

MONACO: And that protocol largely tracked the principles of federal prosecution.

TEMPLE-RASTON: In other words, the people assessing the detainees were having the same sorts of conversations that state and federal authorities have all the time when they have a suspect who's broken both state and federal laws. They figure out who has the stronger case. Now, here's how it works in the national security world: there are some cases that are better suited for federal courts.

MONACO: Well, I think going forward, as I said, we would look at some of those same factors. What are the potential offenses that are available? What are the potential sentences? For instance, in federal criminal cases, oftentimes you have the availability and the potential for a mandatory life sentence.

TEMPLE-RASTON: So, sentencing could be an advantage for criminal courts. And then there are cases when military courts make the most sense.

GENERAL MARK MARTINS: If you already had a case going in a particular area.

TEMPLE-RASTON: That's General Mark Martins, the chief prosecutor at the military commissions at Guantanamo Bay.

MARTINS: That's a particular reason sometimes for a case to go. So, what I will tell you though, and I think there is broad agreement amongst counterterrorism professionals and prosecutors, is that there is a category of cases in which reformed military commissions are going to be the better choice.

TEMPLE-RASTON: For example, if a suspect is picked up on a battlefield, there's no time to read someone their Miranda rights or to collect evidence in a way that would stand up in a criminal court. So, that's an advantage of a military commission. But here's what's new: the new Defense Authorization Act puts a thumb on the scale in favor of the military court system. If a foreigner attacks the U.S. and has ties to al-Qaida, he goes straight to a military commission. The only exception: an alleged terrorist can be tried in a civilian court if the president signs a waiver. The effect is to make the president pay a political price for choosing a civilian court, and these decisions can be very political. Consider the 9/11 case. Here's Attorney General Eric Holder back in November 2009:

ATTORNEY GENERAL ERIC HOLDER: Today, I am announcing that the Department of Justice will pursue prosecution in federal court of the five individuals accused of conspiring to commit the 9/11 attacks.

TEMPLE-RASTON: Seventeen months later, he had to change course, and he announced that the men would be facing trial in military commissions instead.

SAM RASCOFF: That decision was reversed under an enormous amount of political pressure. That political pressure hasn't gone away.

TEMPLE-RASTON: Sam Rascoff is a law professor at New York University.

RASCOFF: These kinds of decisions are going to be the subject of debates and political conversation going forward. So, I think it's a far cry from who's going to get to try this or that bank robber.

TEMPLE-RASTON: The Justice Department is still trying to come up with a system to decide which suspects go to which court. The goal is to have a plan in place by the end of the month. Dina Temple-Raston, NPR News.

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