On Oct. 5, Delta Force, the US Army’s elite counterterrorism unit, captured Abu Anas al Liby in a raid in Libya. Al Liby was wanted in connection with the 1998 US embassy bombings in Tanzania and Kenya.
Al Liby has arrived in New York, where he will face charges in a civilian court. This is a good thing—it is high time that the United States starts following the Constitution consistently. The Fifth Amendment clearly states that the government may not deprive someone of “life, liberty, or property, without due process of law.” The right to due process does not go out the window when we are faced with terrorism. The real test of the Constitution is whether or not America can follow it during hard times. It would send a powerful to message to the world that America is committed to due process if we give fair and consistent trials to our most heinous enemies.
Some would argue that suspected terrorists should not receive trials because “they don’t deserve rights.” They say that their crimes are too horrendous or that terrorists don’t operate with regard for our laws. There are a number of problems with such a mentality.
First, who decides who’s a terrorist? Innocent people are often accused of terrorism. For example, one US policy of giving cash rewards to anyone who could hand over a member of Al-Qaeda or the Taliban led to Afghan and Pakistani forces kidnapping dozens of innocent people and handing them over to the US for a trip to Guantanamo Bay. Due process serves as a check against this kind of arbitrary detention.
Second, due process is a right for everyone, in spite of how heinous his or her crimes are. After all, people who rape and murder children are given Fifth Amendment rights.
Third, with regard to the argument that terrorists don’t agree with our laws, employing such logic would justify not giving trials to anyone. After all, every criminal tacitly states that they don’t agree with the law as soon as they break it.
Another common argument is that since many terror suspects are not citizens, they shouldn’t receive constitutional rights. However, the Fifth Amendment refers to “persons”, not citizens. There is no distinction between citizens and non-citizens when it comes to due process.
Those who are against trying suspected terrorists in civilian courts argue that civilian courts “can’t handle criminals of this caliber.” They seem to think that foreigners who barely speak English will somehow be able to game the court system. This argument is ridiculous; America throws more people in prison than any other country in the world. If the government can sentence people to 25 years to life for possessing a few grams of drugs, locking up people who commit acts of terrorism against America should be easy. After all, financial accounts of known terrorists have been frozen by the US government, so it’s not like terrorists can afford dream-team lawyers as a client like OJ Simpson could. Given American sentiments about Al Qaeda, these actors are unlikely to receive any sympathy from the media or the jury.
Most importantly, many terrorists have been successfully tried and convicted in civilian courts. New York, where Al Liby will be tried, has a 100 percent conviction rate for terrorists. For example, Omar Abdel Rahman, who plotted to blow up several New York landmarks, was tried and convicted in a civilian court and is currently serving a life sentence in federal prison. Zacarias Moussaoui, one of the 9/11 conspirators, was also tried and convicted in civilian court.
Some argue that evidence received through torture cannot be used by the prosecution and could result in terrorists walking. This argument was widely made in opposition to trying Khalid Sheikh Mohammed (KSM) in a civilian court. However, if the US didn’t have enough evidence to convict someone of terrorism before torturing him or her, the individual probably shouldn’t have been tortured in the first place. Furthermore, big names like KSM can definitely be convicted without using torture confessions since large amounts of other incriminating evidence exist.
One of the better arguments offered by the anti-court camp is that classified information could be revealed at trial. Much of the evidence against terror suspects comes from classified sources, and civilian trials are supposed to be open. However, this argument fails in light of the Classified Information Procedures Act (CIPA), which allows the government to prevent sensitive information from being leaked during trial while respecting due process rights. CIPA was created to prevent criminal defendants from blackmailing the government into dropping the charges by threatening to release classified information in trial (a process known as graymail). According to Hanna Madbak of the New York State Bar Association, “The Classified Information Procedures Act has been effectively used by Article III judges to balance the defendant’s right to a fair trial with the need to protect sensitive evidence.”
The final argument offered against bringing terrorists to trial is that federal prisons can’t handle terrorists. Many terrorists, some of whom are affilitated with Al Qaeda, are already housed in federal prisons, and no problems have arisen. Apparently, some people think Al Qaeda operatives have super powers that allow them to escape supermax prisons in the United States, but not at overseas installations. Others argue that terrorists might convert other prisoners to radical Islam. Seeing that many of these terrorists barely speak English, imagining exactly how this could happen is beyond me. If these individuals do cause problems, they can be isolated from the main population in secure wings where pedophiles, informants, gang leaders, and anyone else who poses a danger or is in danger are kept.
Trying al Liby in a civilian court is the right call. Anything else would be unconstitutional. While al Liby does deserve to be punished, he must have his day in court first.