News Release ~ 05/28/2008

Report: Federal Courts Can Handle Terrorism, Unlawful Combatant Cases

 Military Commission Trials Are an Unnecessary Burden on Justice, Due Process

Washington, DC­ (May 28, 2008) -- The U.S. federal court system can effectively handle international terrorism cases without threatening national security or endangering public safety, two former federal prosecutors said today. They made their remarks at a news conference held by Human Rights First, which released a comprehensive analysis of over 120 federal terrorism cases prosecuted over the last 15 years.

The report, In Pursuit of Justice: Prosecuting Terrorism in the Federal Courts, is based on a database of federal terrorism cases and applicable federal statutes. It found that federal courts can handle terrorism cases with “just, reliable results without serious security breaches,” and that prosecutors have myriad tools for prosecuting persons believed to be real terrorists, including over 40 specific treason and terrorism statutes and nearly 100 other federal laws.

The report’s authors, Richard B. Zabel and James J. Benjamin, Jr., partners at Akin Gump Strauss Hauer & Feld LLP, are former prosecutors with the U.S. Attorneys Office for the Southern District of New York in Manhattan, which prosecuted the first World Trade Center Bombing case and other terrorism cases. Mr. Zabel was chief of the narcotics unit and Mr. Benjamin was deputy chief of the appellate unit, after clerking for Supreme Court Justices Lewis Powell and John Paul Stevens.

“The authors aren’t wild-eyed fanatics,” said Carmen Hernandez, president of the National Association of Criminal Defense Lawyers. “They are experienced former federal prosecutors who studied over 100 terrorism cases and found that the system works.

“NACDL has long maintained that federal courts, including courts martial, are the only constitutional forums for prosecuting alleged terrorists and unlawful combatants,” Hernandez said. “Some have raised the question whether the U.S. has the ‘tools’ to prosecute and prevent terrorism, when in fact, the United States Code gives federal judges, prosecutors and defense lawyers an entire toolbox for the prosecution and defense of these cases.”

Hernandez continued, “The nearly-300 remaining individual Guantanamo detainees were arrested or captured in a number of countries, under a wide range of circumstances, and in far too many cases, on dubious accusations and a paucity of evidence. In light of the Human Rights First report, it is preposterous that the administration insists that the constitutionally-deficient military commission hammer is its only tool and the Guantanamo detainees are just so many nails.

“The United States has prosecuted over 120 cases alleging ties to Islamic extremism without a single documented security breach or threat to public safety. Today’s report should greatly inform us as to what our real options are in the debate over the future of Guantanamo and its prisoners.

“In the long term, the best weapon in the war on terror is adherence to the Bill of Rights.”

NACDL Board member Joshua L. Dratel, of New York, said the report, “not only addresses an important issue, but analyzes it in unassailable fashion, including the conclusion that we should not be fixing what ain’t broke. The irony is that of the several counterterrorism measures utilized prior to 9/11, criminal prosecution was the only mechanism that reasonably accomplished its objectives.” Dratel, who has defended a number of pre- and post-9/11 terrorism defendants, was civilian counsel for Guantanamo detainee David Hicks, of Australia.

The report, In Pursuit of Justice: Prosecuting Terrorism in Federal Courts, by Richard B. Zabel and James J. Benjamin, Jr., can be downloaded from Human Rights First at http://www.humanrightsfirst.org/us_law/prosecute/index.asp.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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