ABA Releases Report on Principles to be Considered
for the Detention and Trial of Terrorist Detainees

WASHINGTON, D.C., July 23, 2009 – At the beginning of his term, President Barack Obama ordered the convening of a task force to develop policies for the detention and subsequent trial of detainees involved in counterterrorism operations.  Because of the critical nature of the issue, the American Bar Association Standing Committee on Law and National Security brought together experts with first-hand experience in the field, and has just released issued a report titled “Trying Terrorists in Article III Courts.”
 
In April of this year, a group of 33 legal experts, scholars and practitioners in the field of national security law gathered for a day-long workshop. The workshop focused on major challenges associated with prosecuting, defending and managing terrorism cases in the Article III criminal court system. The participants were asked to consider in particular: (1) issues concerning classified and sensitive evidence, (2) challenges arising from the application of constitutional procedural and federal evidentiary rules to terrorism trials, and (3) problems of trial management and security. This discussion provided a baseline for broader debates regarding the appropriate forum for terrorism trials.
 
Through the workshop discussion, the participants concurred on some conclusions and principles, which are part of the report:

• Some of the problems that exist in terrorism trials are substantially similar to those presented in other criminal contexts, such as trials of mob-related crimes. Some of the procedures and practices developed for trying such cases are adaptable to terrorism trials.
• Many of the ad hoc procedures developed by the courts to manage ter¬rorism trials have been effective. There is, however, a steep learning curve for judges and courthouses when it comes to trying terrorist suspects.
• Some of the challenges associated with terrorism trials are posed by constitutionally mandated safeguards and thus, the use of an alternative forum to the regular Article III courts (such as a national security court) may not alleviate those challenges.
• Some of the discussants suggested that, while it is generally desirable to prosecute terrorism cases in Article III criminal courts, there may be some class of cases that require a backstop to the Article III frame¬work to deal with terrorist suspects who may pose a threat to national security but who cannot be prosecuted successfully. 

The materials contained within the report represent the opinions of the discussants and do not reflect the offi¬cial policy of their respective agencies, private sector organizations, or the United States Government. The materials should not be construed to be those of either the American Bar Association or the Standing Committee on Law and National Security, unless adopted pursuant to the bylaws of the association. The report is intended for educational and informational purposes only.

This is the second report in the Standing Committee on Law and National Security’s “Due Process and Terrorism” series. The third report titled “Exploring Counterterrorism Detention Alternatives” will be released in August.

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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