May 2006
Successes and Challenges in Terrorism Prosecutions: An In-Depth Look at Department of Justice Terrorism Cases after 9/11
The sentencing of Zacarias Moussaoui has raised new questions about the prosecution of terrorists in the post-9/11 era. Are civilian courts the proper forum for trying terrorists? Are military commissions better suited to trying terrorists or can civilian courts be modified to do so? Why are some terrorist suspects tried in civilian Article III courts while others are tried in military commissions or are detained without trial? To navigate the maze of legal decisions, obstacles, and successes the Department of Justice faces in prosecuting terrorists, as well as to discuss its successes in doing so, AEI hosed Deputy Attorney General Paul J. McNulty. Prior to his confirmation as deputy attorney general, Mr. McNulty was the U.S. attorney who charged and supervised the trial of Zacarias Moussaoui. He reflected on the many extraordinary challenges of using traditional prosecutorial tools in Article III courts to bring terrorists to justice.
Paul J. McNulty
U.S. Department of Justice
The September 11 terrorist attacks marked a defining moment in our nation’s history. Following that landmark event, President Bush directed Attorney General John Ashcroft to prevent such an attack from ever happening again. The Department of Justice has responded to the president’s request and has made ensuring American safety and protecting American freedom its highest priorities. The impact that September 11 had on the Justice Department is immeasurable, having shifted the department’s focus from reaction to prevention.
The Department of Justice has no higher calling than the protection of American citizens. The nation must and will persevere in the mission against terror, and the Department of Justice will remain unyielding to this pursuit.
Ben Wittes
Washington Post
While candid enough to acknowledge some failures, Deputy General McNulty overstated the success of the Department of Justice and understated the challenges that exist within the civilian justice system. The department did not need to address the challenges of classified information and unavailable witnesses in the Zacarias Moussaoui case; because he pled, it did not need to rise to these challenges. However, the same problems will undoubtedly surface again in the future. In order to confront these challenges in the future, the Justice Department should focus on establishing consistency, predictability, and reasonable expectations for the process of trying terrorists.
The department has a large number of terror suspects potentially amenable to trial for a September 11 case and has yet to take further action. The department seems unprepared or unable to respond to the challenges of trying terrorist leaders within the civilian justice system.
Neal Katyal
Georgetown University Law Center
The Justice Department’s record of success in prosecuting international terrorists is praiseworthy. Thus far, the Justice Department has tried 435 defendants, with 253 convictions in forty-five jurisdictions. One cannot disagree with the success of that track record within this limited timeframe.
It is a source of pride for the American court system that a man like Salim Ahmed Hamdan can sue the president of the United States in the highest court of the land without having to fear for his life. There is something remarkably American about our system, and it is something that the Justice Department has not done a good job of embracing, at least in respect to that set of terrorism persecutions.
AEI intern Stacy Jer prepared this summary.
