Civilian courts the right place for terrorism trials


A confrontation is brewing — we hope — between the Obama administration and Congress over the ability of the Justice Department to try accused terrorists in the criminal justice system. Some in Congress are seeking to bar civilian trials for terrorists entirely; the administration wants the right to choose between military justice and the civilian system case by case.

In our view, Congress is wrong and the administration is half-right. We believe that all suspected terrorists at Guantanamo and those arrested in the U.S. should be tried in the civilian courts. But even the administration’s selective approach would be difficult to pursue under provisions of a 2012 defense authorization bill approved by the House and the Senate Armed Services Committee.

The House version would preserve a requirement in current law that no Defense Department funds be used to transfer inmates from Guantanamo to the United States, effectively ruling out civilian prosecutions. The bill approved by the Senate committee says that the armed forces are authorized to detain people captured under Congress’ post-9/11 laws regarding the use of force. It is unclear whether accused terrorists captured on U.S. soil would have to be turned over to military custody for trial. But that is clearly the preference of many in Congress.


The notion that the civilian criminal justice system can’t handle terrorism cases is a canard. Defenders of the civilian system point to the guilty pleas of Umar Farouk Abdulmutallab, the “underwear bomber,” and Sept. 11 conspirator Zacarias Moussaoui, two of many terrorism suspects successfully prosecuted in civilian court.

Unfortunately, President Obama has not been as stalwart as Atty. Gen. Eric H. Holder Jr. in defending the administration’s commitment to civilian trials. Deferring to congressional opposition, the president abandoned plans to try Sept. 11 plotter Khalid Shaikh Mohammed and his four alleged co-conspirators in a civilian court, opting for a military commission instead.

But the case for civilian trials is a strong one. They provide more due process than military commissions. To the extent that the war on terror is a battle for hearts and minds, they show the world that the United States is willing to accord even its enemies the full panoply of rights guaranteed by the Constitution. Last and most important, through trial after trial the civilian justice system has demonstrably withstood the challenges posed by terrorism, whatever its source, whereas the military commission system has much less of a track record. As Congress continues to fashion the defense authorization bill, the president should speak up for what was once a priority.