Trying terrorists

David Rivkin and Lee Casey conclude their series on “the law and the war” by considering how best to deal with al Qaeda operatives and sympathizers who are captured in the U.S. without having been involved in combat against U.S. forces overseas. To the extent that they assist al Qaeda in non-lethal ways, such individuals cannot be held as combatants; to the extent that they are subject to criminal prosecution, the trial must be by a civilian court. However, prosecuting al Qaeda operatives in an open trial might require the public presentation of evidence obtained through intelligence sources, which could work to al Qaeda’s advantage. Yet, the right to a public trial is a fundamental one.
Rivkin and Casey urge consideration of establishing specialized federal courts to hear such terrorism cases. Absent a constitutional amendment, this wouldn’t eliminate the need for a public trial of non-combatants. But such a court would become more skillful than regular ones in handling these kinds of cases, including the evidence-suppression phase that need not occur in public.

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