The Trial of Terrorism: National Security Courts and Beyond

Abstract

Exceptional courts are found in numerous settings, and have long pedigrees of operation in multiple parts of the world as well as on the international plane. In this book chapter we introduce and discuss the multiplicity of phenomena that emerge in the context of the use of exceptional courts to try suspected terrorists and which we broadly cabin under the umbrella notion of ‘due process exceptionalism.’

States have long used the legal process and the courts as means to manage and address exceptional threats and challenges. Existing courts have been modified, new courts have been established and jurisdiction for certain offenses moved from civilian criminal courts to military courts and commissions or added to the roster of offenses with which the latter could deal. In this chapter we address the modification and adaptation by states of ordinary legal process as a means to manage politically motivated violence. We outline the characteristics that delineate and define exceptional courts. Such defining features include (a) the authorization basis and political context of a court’s making; (b) the limits articulated to such courts in their operation, including temporal, jurisdictional, and review limits; (c) the range of offenses over which the courts have jurisdiction; (d) evidentiary and procedural rules used by and in the courts and the extent of their deviation from the rules applied in the ordinary courts system; (e) the judicial appointment mechanism to such courts; (f) the perceived neutrality, impartiality, and independence of such courts from the other branches of government, with special focus on the executive branch; and (g) the sentencing powers of such courts. Our analysis reflects on the complexity of the trial space, and the risks, benefits and consequences for states of utilizing trial to respond to exigency and the challenge of politically motivated violence.

There is paradox and tension in the resort to exceptional measures by democratic states. Diversions from the rule of law are never an entirely straightforward exercise. Specifically, in the operation of terrorism trials, one can see zones of anomie and of juridification co-existing ambiguously in the state of exception. In order to facilitate the range of modifications to enable ‘simpler’, streamlined trials, the state invariably compromises its own rule of law ordering and runs the constant risk of being caught by the inconsistencies that follow. Recognizing that there can be variances in state responses to terrorism and that modifications will occur on a spectrum, the state may be forgiven for minor incursions onto liberty and due process. However, if the democratic state profoundly strays from the core of rights protections as part and parcel of the modified trial process (such as by engaging in rendition, torture, forced feeding, and even extra-judicial execution), the costs to the legitimacy, status and political power of the state may be considerable. Exposure of the state’s transgressions is often, paradoxically, enabled by the very trials that modified due process enabled. As questions over evidence, confessions, detainee treatment, and access to legal counsel surface before and during trial, the state may find that the exceptional trial creates unexpected vulnerability as the ‘secret’ state of surveillance, collusion, illegality, and rule of law transgression is revealed in ways that cannot be contained. One result is that in an exceptional court there are always two trials in progress: the first of the defendant, and the second of the court, and ultimately the state itself.

Keywords: National Security, Military Commissions, Due Process, Exceptionalism, Rules of Evidence