Terrorism, Criminal Prosecution, and the Preventive Detention Debate

In the aftermath of the 2008 election, change is in the air with respect to counterterrorism law and policy. The Obama administration almost certainly will terminate the military commission system, and it likely will take steps at least to reduce reliance on the underlying practice of long-term military detention. Against this backdrop, the debate regarding how best to reform detention policy has sharpened. Some contend that federal criminal prosecution should supply whatever long-term detention capacity may be required, while others contend that it would be better to design a detention system (such as a national security court) specifically tailored to the problem of terrorism prevention. I do not propose to resolve this debate here. Rather, my aim in this symposium article (also to appear as a chapter in a forthcoming collected volume published by Brookings) is to enrich the debate with a candid and precise assessment of the capacities and limitations of the federal criminal justice system as it relates to terrorism, with a particular focus on the prevention scenario. Part I examines a variety of charges available to prosecutors in that scenario. I conclude that these charges are far more prevention-oriented than critics often admit, though I also note a handful of limitations on their scope. Most significantly, perhaps, I draw attention to limits on the extraterritorial scope of the two material support laws as they stood prior to amendment in 2001 and 2004, respectively. That caveat aside, the scope of the charges available to prosecutors today compares well to the grounds for detention in the military detention system, and very favorably to the charges available in the military commissions system. Part II surveys several of the procedural and evidentiary considerations that critics have cited as grounds to doubt the ability of the criminal justice system to provide an adequate capacity to incapacitate suspected terrorists. By and large, my analysis concurs with the much-cited white paper that Richard Zabel and James Benjamin recently produced for Human Rights First, which is to say that I agree with them that many of the leading concerns in this area are overstated. I differ from them to some extent, however, insofar as I emphasize three sets of procedural safeguards that do tend to limit the reach of the criminal justice system in comparison to existing or proposed alternatives. Each is a familiar and much-lauded component of the fairness that characterizes our criminal justice system, and none should be set aside lightly. Specifically, I refer to (i) mandatory disclosure concepts (e.g., Brady and Giglio); (ii) Confrontation Clause (and hearsay) concerns (a topic which subtly imports the troubled question of interrogation methods); and (iii) the burden of proof itself. These are the features that do the most work in accounting for the difference in reach among the criminal justice system and its competitors, and I suggest that they should be the focus of the debate going forward. Because no one seriously doubts that criminal prosecution will continue to be an important tool of counter-terrorism policy going forward - whatever becomes of military detention and proposals for alternative detention systems - I conclude in Part III with a discussion of modest steps Congress might take to optimize the criminal justice system for the task of prevention-oriented prosecution.