Prosecuting Terrorism

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Prosecuting Terrorism

The Conflict

Throughout its long history, terrorism often has been addressed through swift violence in return, rather than through prolonged legal proceedings. Prosecution of terrorism, especially with the rise of international terrorism, involves coordination of multiple legal systems and frequently conflicting political aims.


  • Nations that have harbored terrorists often covertly support their acts or fear reprisals from them.
  • Reluctance to extradite terrorist suspects to countries that allow capital punishment has delayed many prosecutions.
  • Successful prosecution of terrorists can require years of investigation of well-hidden funds and tiny pieces of circumstantial evidence spreading across nations and continents.


• In the age of international terrorism, alliances cross national borders and frequently have been based on religious beliefs rather than national objectives.

Nations that have fallen victim to terrorism during its long history have attempted to battle it in many ways, the main approach being a violent attack in retaliation. The sad story of the Arab-Israeli conflict, with suicide bombings in Israel being countered by raids on Palestinian villages, is a prime example. In modern times, however, another method is gaining importance: prosecuting terrorists through legal systems.

The practice of trying terrorists, rather than killing them in military attacks or executing them upon capture, reaches back to the late 1700s. In Ireland, a French-supported group known as the United Irishmen rebelled against British rule, resulting in massive casualties. The British government suspended many legal protections and established new laws that carried a death penalty, such as the Insurrection Act forbidding "secret oathtaking." Trials for these crimes lacked many of the protections for defendants that are taken for granted now, and often they were stages for violence as well. After being found guilty of treason in 1795 for allegedly serving as a French agent during the Irish rebellion, for example, Reverend William Jackson committed suicide in the courtroom.

During the latter part of the twentieth century and the beginning of the twenty-first, terrorism became rampant throughout the world. While people within the United States focused their attention on the attacks on the World Trade Center and the Pentagon in September 2001, there had been many prior acts of domestic and foreign terrorism directed against the United States. At the same time, pursuit and prosecutions of captured terrorists had been ongoing in numerous other countries for attacks committed against their citizens. As terrorism took on an international focus, many experts began to look at how nations could cooperate to battle terrorism through the courts.

Historical Background

Domestic Terrorism in Europe

For more than 200 years various groups have rebelled violently against British rule in Ireland, and trials of captured rebels have often led to further violence. The Society of United Irishmen, founded in 1791, began as a political movement working for parliamentary reform and religious freedom. After war broke out between Britain and France, however, the United Irishmen were supported by French revolutionaries and became more violent. Many of the group's members and supporters were arrested on charges of treason or sedition, sometimes merely because they had published materials critical of British rule. In 1796 the British established the Insurrection Act, which made the crime of "secret oathtaking" punishable by death and suspended the right of habeas corpus (charging someone with a crime) for prisoners, thus allowing the government to hold accused persons for long periods without bringing them to trial. After 16 leaders of the United Irishmen were arrested and the British imposed martial law, violence spread throughout Ireland and several of the leaders were sentenced to death.

Rebellion in Ireland continued for the next century and escalated after Britain partitioned Ireland in 1921, creating an independent nation in the south but keeping the north under British rule. The Irish Republican Army (IRA), which emerged after the partition, split into two groups in 1969. The "officials" worked through political means, but the "provisionals" devoted their efforts to terrorist activities in both Northern Ireland and England. In 1971 the British army arrested hundreds of suspected terrorists, many of whom were imprisoned without trials, and in the following year almost 500 people died in Northern Ireland and England. Fearing that the IRA would intimidate jurors, a special court was set up to try alleged terrorists without a jury. The IRA was outlawed, resulting in many more arrests and long prison terms.

In 1981 a group of prisoners serving sentences in the Maze Prison near Belfast for firearms offenses and other crimes began a hunger strike. Led by prisoner Bobby Sands, the strike was an effort to regain political status for the IRA and to win privileges such as freedom of association among the IRA prisoners. While Sands claimed to be a political prisoner fighting an unjust occupier, not a terrorist, the British government disagreed and rejected the prisoners' demands. As quoted in Thomas Hennessey's A History of Northern Ireland(1997), British Prime Minister Margaret Thatcher had no intention of making concessions to the terrorists: "Crime is crime is crime; it is not political." Sands and nine other prisoners died after several weeks of starvation, touching off further violence.

By the late 1990s more than 15,000 people (both Catholic and Protestants) had served prison sentences for violent acts. As part of the peace process, the last of them was released from Maze Prison in 2000, including several convicted murderers, and the prison was closed. Nevertheless, there still was a trial pending for a major terrorist act in Northern Ireland, the 1998 bombing in the market square of Omagh, which killed 29 people. Although prosecutors had arrested several accused participants in the bombing, they had not been able to convict anyone because witnesses were afraid to testify. The first conviction came in January 2002, when Colin Murphy, a member of a militant splinter group, the Real IRA, was found guilty of conspiracy to cause an explosion.

Several European countries experienced long and bloody domestic terrorist sieges lasting from the 1960s through the 1980s at the hands of political extremists. In Italy, for example, the reign of terror began in 1969; several bombs that exploded in Milan's Piazza Fontana and in Rome, causing numerous deaths and injuries, were blamed on leftist activists. The government arrested four thousand activists and instituted many repressive measures to control leftist groups. The violence, however, continued throughout the next decade, peaking in 1980 when more than 80 people were killed in the bombing of a train station in Bologna. During the intervening years several Italian judges (who have the responsibility under Italian law for investigating crimes) had concluded that the Piazza Fontana bombing actually had been the work of Ordine Nuovo, a right-wing fascist group, rather than leftists. But, after a long series of trials and appeals, all of the fascists arrested were acquitted in 1985. Almost fifteen years later a new investigation by Judge Guido Salvini resulted in the trial of a member of Ordine Nuovo. During his investigation Salvini uncovered a possible government cover-up of fascist involvement in the bombing, as well as the unjust arrests of many leftists.

Prosecution of Home-Grown Terrorism in the United States

There is a long history of domestic terrorism in the United States, originating at all ends of the political spectrum and involving both organized groups and individual terrorists. The Ku Klux Klan, which emerged in the years following the Civil War (1861-65), was one of the first domestic terrorist organizations, known for its intimidation of African Americans and involvement in killings of civil rights workers. Because of the secrecy surrounding the Klan's activities and the unfortunate public support of some of its actions, arrests and convictions were few and far between. Just before World War II (1938-45) began, an equally dangerous and violent group, the Christian Front, sprang up. Founded by radio personality Father Charles E. Coughlin, the Christian Front blamed Jews for the Russian Revolution (1917) and the Spanish Civil War (1936-39). Its members believed that, if not stopped by armed force, Jews would turn the United States into a communist state. The group was thought to be linked to both the Nazi government and the IRA.

Partly out of fear of the Christian Front, Congress passed the first federal gun control law. In 1940 several of the group's leaders were arrested in New York City and charged with running a covert militia movement. Stashes of guns and ammunition, some supposedly stolen from military bases, were discovered. During their trial, the Christian Front leaders claimed that the government was trying to frame them and had encouraged them to perform violent acts. Prosecutors feared that some of the jurors were secretly Coughlin supporters. The prosecution's case crumbled and the defendants were released, with Coughlin publicly congratulating them. He continued to preach hatred until the United States entered World War II and the government shut down his newspaper and radio program. When trying terrorists in future years, the federal government had to overcome the damage to its reputation that resulted from this trial.

During the 1970s left-wing terrorist acts were rampant in the United States. One of the most notorious left-wing groups was the Symbionese Liberation Army (SLA), which became best known for kidnapping newspaper heiress Patricia Hearst. The SLA was also responsible for numerous bank robberies and attempted bombings in California. Some members of the SLA were arrested and convicted during the 1970s, including Hearst, despite her claim that she was an innocent victim who had been forced to participate in robberies under her new revolutionary identity. Other members, however, were not apprehended because they had fled and were living "underground" with new identities. Kathleen Soliah, who allegedly had been involved in a plot to kill police officers in Los Angeles with pipe bombs, was arrested in 1999 while living as a Minnesota housewife under the name of Sara Jane Olson. Although she later claimed to be innocent of any crime, Soliah entered a guilty plea in late 2001, fearing that she would receive a harsh sentence in the aftermath of the World Trade Center attack. Hearst received a pardon from outgoing president Clinton in 2001. During that year police in Los Angeles also reopened their investigation into a 1975 bank robbery in which a female customer had been killed. Three ex-SLA members, Bill and Emily Harris and Mike Bortin, were arrested in January 2002 for their participation in the robbery, but another participant, James Kilgore, still remained at large.

Prosecuting the Unabomber

For almost two decades, beginning in the 1970s, a mysterious individual known only as the Unabomber was responsible for a series of package bombings that resulted in three deaths and dozens of injuries. With the Unabomber's motives and targets unclear to authorities, the FBI investigated the case as a criminal matter, though the Unabomber's actions were akin to terrorism. Despite extensive investigations involving 200 suspects, the Unabomber remained at large until 1995. After the Unabomber extorted the New York Times and the Washington Post into publishing his rambling manifesto attacking modern technology, a New York man told the FBI that he thought his brother, Theodore "Ted" Kaczynski, might be the Unabomber. When Kaczynski was arrested at his mountain cabin, the FBI found unquestionable evidence that he was indeed responsible for the attacks, including materials identical to those used in the package bombs and a draft of the manifesto.

Kaczynski, a promising scientist during his twenties, had become increasingly antisocial and eventually had retreated to a primitive cabin, leading his attorneys to argue an insanity defense in hopes of avoiding a death sentence. Kaczynski, however, frustrated their efforts on his behalf by insisting that he was not mentally ill and by refusing to allow psychiatrists to examine him. Instead, he wanted to dismiss his lawyers and represent himself during the trial. After the judge refused to allow him to represent himself unless he could convince the court that he was mentally competent to do so, Kaczynski finally agreed to be examined by a court-appointed psychiatrist. The psychiatrist determined that Kaczynski was a paranoid schizophrenic. The judge would not allow Kaczynski to represent himself and said that he would admit the psychiatric findings at the trial.

Rather than face the prospect of a trial, Kaczynski agreed to a plea bargain in which he admitted responsibility for all of the bombings and would serve four consecutive life sentences. Several of the Unabomber's surviving victims were infuriated that he had not received a death sentence. Prosecutors at the sentencing hearing described him as being motivated by personal revenge, which in turn clearly angered Kaczynski, who promised to respond to this misrepresentation at an unspecified "later date."

Oklahoma City Bombers on Trial

The trials of Timothy McVeigh and Terry Nichols for the 1995 bombing of a federal building in Oklahoma City raised international controversy and exposed gaping flaws in the Federal Bureau of Investigation's (FBI) operations. Mc-Veigh, an army veteran who eventually admitted responsibility for the deaths of 168 people and injuries to hundreds of others, was an unrepentant and unappealing defendant. Nevertheless, the death sentence imposed on him by a federal court fanned the flames of an already heated international debate on the use of the death penalty in the United States. After the U.S. Supreme Court allowed the death penalty to be reinstated in 1976, more than 700 prisoners were executed in the United States during the next quarter century, and 3,700 more were awaiting execution on death row. According to the May 21, 2001, cover story in Time International, only China, Iraq, and Saudi Arabia had more executions than the United States. President George W. Bush (2001-) himself had presided over 152 executions during his mere five years as Texas governor. At the same time, 108 other countries had banned the death penalty, including all other western industrial countries.

McVeigh's execution was scheduled for May 16, 2001. Only a few days before that date, however, a greatly embarrassed FBI disclosed that thousands of pages of documents that might have been helpful to McVeigh's defense were never given to his lawyers. The execution was postponed to give the defense team a chance to review the documents, but nothing was discovered that justified changing the verdict. On June 11, 2001, McVeigh became the first federal prisoner to be executed in 38 years.

McVeigh's co-conspirator, Terry Nichols, who had received a separate federal trial, was found not guilty of actually participating in the bombing. One mitigating circumstance was that Nichols and his wife had assisted prosecutors in the McVeigh trial. Nichols was instead convicted of manslaughter for conspiring in the bombing, a crime that did not carry a possible death sentence. After the jury became deadlocked over what sentence to impose, the judge dismissed it and sentenced Nichols to life imprisonment. The Nichols verdict caused an outcry among survivors of the bombing and the victims' families. The jury forewoman claimed that she received several bomb threats, and infuriated state prosecutors were determined to bring Nichols to trial in state court on other charges that could carry the death penalty.

Trying Antiabortion Terror

After the Supreme Court legalized a woman's right to have an abortion in the landmark case of Roe v. Wade, 410 U.S. 113 (1973), protests of the court's decision soon became an ongoing activity. Many of the protesters engaged in disruptive but peaceful activities, such as praying in front of women's health clinics. Others chose somewhat more drastic means, chaining themselves to clinic doors or to automobiles blocking the entrances. A few extremists, however, turned to violence as a means of protest. Bombings of women's health clinics and shootings of doctors who performed abortions led the Justice Department to launch a grand jury investigation in 1994 to determine whether there was a national conspiracy among abortion opponents. The grand jury was dissolved two years later, however, after it could find no compelling evidence of a conspiracy.

Nevertheless, violence against clinics and abortion providers continued to escalate, resulting in the death or injury of several health workers. Dr. Barnett Slepian, a Buffalo, New York, obstetrician, was shot and killed through a window of his home on October 23, 1998, while his wife and children looked on.

The suspect, James Kopp, became an antiabortion activist after his girlfriend ended their relationship and had an abortion. He had been arrested numerous times since 1984 in connection with violent protests and was the suspect in three nonfatal shootings of health workers in Canada, but he remained free at the time of the Slepian murder. He finally was arrested in France more than two years later after being traced through email and money sent to him there by two antiabortion activists in New York City. Kopp's return to the United States for trial was complicated by the same anti-death penalty debate that had arisen during the McVeigh trial. The death penalty had been abolished in France in 1981, and the French government refused to extradite Kopp to the United States unless Attorney General John Ashcroft agreed not to seek a death sentence. When returned to the United States Kopp faced federal and state charges that could lead to life imprisonment.

Ironically, just prior to Kopp's arrest, a federal court had ruled that a website called the "Nuremberg Files" was protected by the First Amendment right to free speech. The website listed names, addresses, and photographs of abortion providers; more ominously, the list contained the crossed-out names of doctors who had been killed (including Slepian). The Kopp investigation also uncovered a possible international antiabortion terrorist movement that centered around Rev. Patrick Mahoney. For several years members of Mahoney's Washington, DC-based group, the Christian Defense Coalition, had been occupying offices of the Irish Family Planning Association and teaching Irish antiabortion protesters how to blockade clinics and to intimidate women trying to enter. The day before Kopp was arrested an Irish court had issued an injunction prohibiting Mahoney from continuing this harassment. When Mahoney heard that Kopp had been arrested, according to Bruce Shapiro in the Nation (April 23, 2001), he warned the Bush administration not to "harass and intimidate the pro-life movement."

The Spread of International Terrorism

The year 1968 marked the beginning of widespread terrorism throughout the world. Following the "Six Day War" of 1967, some extremist Arabs began bombing and shooting raids within Israel, which responded with raids of its own. Soon this part of the Arab-Israeli conflict was out of control, and terrorist acts aimed at Israel and its allies, especially the United States, became common both inside and outside of Israel. Some groups began to form alliances based on religious bonds rather than national borders, giving rise to internationally based terrorist movements.

Domestic terrorism also escalated after 1968 in Europe, especially in France, Germany, and Italy, as leftist students conducted widespread protests against their governments; the most radical students turned to terrorism. Terrorist movements also sprang up in Latin America, often resulting in the rise of repressive governments. The Provisional IRA broke away from the main IRA movement in Northern Ireland and created the decades of violence that became known as "the Troubles."

While the countries that fell victim to these terrorists made great efforts to capture and prosecute them, governments were often forced to release them from prison when a later group of terrorists would make the release of imprisoned terrorists a condition of freeing their hostages. In 1969, for example, an El Al airliner flying from Switzerland to Israel was hijacked and several passengers were killed or wounded. Three terrorists were convicted and imprisoned, but they were all released the next year as a concession to terrorists who hijacked a Swissair plane.

Trouble Keeping Them Behind Bars

Keeping terrorists behind bars once they've been convicted in a trial has proven difficult, as terrorist groups regularly demand the release of their compatriots in exchange for a release of hostages. In September 1972 Palestinian Arabs belonging to the Black September group slipped onto the grounds of the Olympic Village in Munich, West Germany, where they killed two Israeli athletes and kidnapped nine others. They demanded the release of 200 Palestinian terrorists being held by Israel, which refused to concede to this demand. In a gun-fight at the city's airport, all of the hostages and most of the terrorists were killed. The three who survived were arrested, but only a month later they were released in exchange for hostages on a hijacked Lufthansa airliner. The suspected leader of Black September, Abu Daoud, later was sentenced to death for a terrorist attack on Jordan, but eventually he too was reprieved and released.

Four years after the Munich massacre, a group of West German and Palestinian terrorists hijacked a French airliner bound for Entebbe, Uganda, and demanded the release of jailed terrorists. Although most of the hijackers were killed in a battle at the airport, they were succeeded by two other groups of terrorists, who kidnapped and later killed West German businessman Hans-Martin Schleyer and then hijacked a Lufthansa airliner. Again the terrorists' demand was that jailed terrorists be freed, among them the leaders of the Baader-Meinhof gang. The Baader-Meinhof gang, headed by Andreas Baader and Ulrike Meinhof, operated out of Germany in the early 1970s; most of Germany's terrorist activity in this time is attributed to Baader-Meinhof. Even though most of the group's leaders were captured and imprisoned in early 1972, they continued to inspire fellow terrorists from their cells.

The Lockerbie Trial

Another terrorist prosecution that spanned many years and showed the difficulty of bringing suspects to trial involved the bombing of Pan American Flight 103 over Lockerbie, Scotland, in 1988. The crash killed 259 passengers and crew members, plus another 11 residents of the small village of Lockerbie. Investigators had to search through wreckage that had been scattered over hundreds of square miles of the countryside. Their efforts led them to terrorist groups operating throughout Europe, and eventually to two Libyan suspects, Abdel Basset Ali Mohamed al-Megrahi and Lamen Khalifa Fhima, who were believed to work for Libyan intelligence. The suspects, employees of a Libyan airline, allegedly had placed a suitcase containing the bomb on a flight that connected with Flight 103.

Libyan leader Muammar Qadhafi initially fought all efforts to have the suspects extradited for trial, resulting in United Nations sanctions and blockades against Libya, but eventually he agreed to a trial with specific restrictions. The pair would not be extradited to the United States or to Scotland, and they would be tried under Scottish law, rather than American law, which provided for the death penalty. The trial finally began in 2000, at a Dutch military base that temporarily was considered Scottish territory. Prosecutors claimed that the bombing had been in revenge for a 1986 air raid on Tripoli, Libya, in which Qadhafi's adopted daughter had been killed. The air raid, in turn, had been launched in response to Libya's alleged participation in a Berlin discotheque attack that killed two American soldiers.

Despite extensive forensic evidence and testimony from 230 prosecution witnesses during the eight-month-long trial, only one of the suspects, al-Megrahi, was convicted. He was sentenced to life imprisonment. Al-Megrahi's codefendant, Fhima, was acquitted for lack of evidence.

Prelude to Prosecution: Investigation

During the 1990s terrorism became a major worldwide crisis. Networks of terrorists crossed national lines and chose targets in widespread locations. The groups responsible were often sheltered by other nations that sympathized with the political or religious aims of the terrorists, or were fearful of antagonizing terrorist sympathizers in their own countries. Israeli politician Benjamin Netanyahu, in his book Fighting Terrorism (1995), pointed out the importance of treating terrorism as a criminal act: "The point of departure for the domestic battle against terrorism is to treat it as a crime and terrorists as criminals. To do otherwise is to elevate both to a higher status …The fact that terrorists are politically motivated criminals is irrelevant." In Israel, this approach often has been translated into mass arrests of suspected terrorists and armed retaliation.

Investigations of terrorist acts in foreign countries by the FBI or other law enforcement agencies sometimes take years; by the time that suspects are identified, they have taken refuge elsewhere. The United States investigation of the 1998 embassy bombings in Africa, for example, required review of phone messages and computer databases involving thousands of possible terrorists and organizations. In 1993 the first bombing of New York City's World Trade Center caused six deaths and hundreds of injuries. In 1995 a blind Islamic priest, Sheik Omar Abdel-Rahman, and nine of his followers were convicted of plotting to bomb various New York landmarks, but prosecutors were unable to prove that any of the defendants were linked to the 1993 World Trade Cener bombing. The sheik was sentenced to life in prison without parole, and his followers also received long sentences. The key piece of prosecution evidence, provided by an FBI informant who had infiltrated the group, was a videotape of the suspects filmed at a New Jersey mosque, showing them mixing explosives in a huge metal drum. In November 1997 the elusive terrorist Ramzi Ahmed Yousef was convicted of being the mastermind behind the bombing, as well as a thwarted plan to blow up numerous airliners.

Prosecutions of later terrorist attacks in Saudi Arabia, Kenya, and Tanzania proved equally difficult. In 1996 a terrorist bombing of the Khobar Towers apartment complex in Dharhan, Saudi Arabia, killed 19 United States military personnel and injured 200 others. Although FBI director Louis Freeh believed that several Iranian officials were involved in the bombing, direct witnesses were lacking, and the George H. Bush administration (1989-1993) feared that prosecuting these men would endanger diplomatic relations in the Middle East. The capture and trial of terrorists accused of the 1998 bombings of United States embassies in Kenya and Tanzania took three years and implicated the terrorist group al-Qaeda and its leader, Osama bin Laden. Despite a massive international investigation, the case was put together by a stroke of luck. A man later arrested with a phony passport gave investigators the names of suspects and also linked al-Qaeda to the attacks. After a lengthy trial, four Saudi and Jordanian men were sentenced to life imprisonment in 2001. The judge imposing the sentences also ordered restitution of US$33 million, which he hoped would come from al-Qaeda bank accounts being traced. Thirteen other indicted suspects, however, including bin Laden, had not been apprehended.

Recent History and the Future

Within the United States recent attention to terrorist prosecutions understandably focused on the attacks that destroyed the World Trade Center and damaged the Pentagon on September 11, 2001, and their aftermath. The legal fate of suspects such as "shoe bomber" Richard Reid and "American Taliban" John Walker Lindh remained uncertain, as did that of the many Taliban fighters who were captured and imprisoned at the United States military base at Guantanamo Bay, Cuba. In the months immediately after these attacks, the United States and numerous other nations took major steps to toughen prosecution of suspected terrorists, and experts began to strategize about how best to conduct these prosecutions. The difficulty of investigating and prosecuting terrorism was apparent; by late 2001 the State Department had profiled 28 foreign terrorist organizations considered an immediate threat to United States security.

Shortly after September 11, 2001, hundreds of people (most of them of Middle Eastern ancestry) were rounded up and arrested for violations of immigration statutes. Since those arrested were not United States citizens, legal protections such as the right to a lawyer or bail often were not provided. Information provided to the public was limited, so that even the names of the people detained were kept secret. The federal government also began to interrogate thousands of Middle Eastern immigrants about their political beliefs and personal contacts. By November, Congress had passed the "USA Patriot Act," targeting terrorism within the United States. The act contained many provisions that alarmed civil rights advocates, among them reducing the requirements for obtaining search warrants and monitoring email communications without a court order.

Military Tribunals

A question also arose about how to try captured terrorists and whether a trial would even be an option, particularly in the case of suspected al-Qaeda leader Osama bin Laden and the leaders of Afghanistan's Taliban. In late 2001 President George W. Bush authorized the use of military tribunals to try suspected terrorists who were not United States citizens. Such tribunals had not been used since 1942, when German saboteurs landed in submarines near New York City during World War II.

The tribunals would be held in secret and presided over by military officers; a guilty verdict could be reached by a two-thirds vote of the presiding officers, rather than the unanimous jury verdict required in other criminal trials. Civil liberties advocates worried that the tribunals could be expanded to allow prosecution of United States citizens, and that the president was upsetting the balance of government power among the executive, legislative, and judicial branches of government by unilaterally establishing the tribunals. Because of the outrage over the September 11 attacks, however, there was a great deal of public support for the tribunals, as well as for military action that would kill the suspected terrorists and eliminate the need for trials altogether.

President Bush, in a speech to U.S. attorneys on November 29, 2001, voiced his support for military tribunals.

Those who plot terror and those who help them will be held accountable in America. That's what we're going to do. Protecting [the] innocent against violence is a solemn duty of this country …To meet that obligation, a wartime reorganization is under way at the Justice Department. More investigators will go to front lines. The federal government will work more closely with state and local authorities … Agents will receive better training and new technology to help track and capture terrorists or those who support them. And these changes are essential …

I've also reserved the option of trial by military commission for foreign terrorists who wage war against our country …Non-U.S. citizens who plan and/or commit mass murder are more than criminal suspects, they are unlawful combatants who seek to destroy our country and our way of life. And if I determine that it is in the national security interests of our great land to try by military commission those who make war on America, then we will do so.

Prosecuting Terrorism Today

The September 11 attacks launched a discussion among terrorism experts and the international community about how to join forces to prosecute terrorism. David Scheffer of the United States Institute for Peace released a report on options for prosecution in which he noted that the United States and numerous nations were using a combination of armed force and criminal justice tools to fight terrorism. Scheffer's report discussed nine possible judicial forums for trying cases, including United States federal courts and military tribunals, foreign national courts, and international courts administered by the United Nations. A group of international conventions could be invoked against suspected terrorists to support the prosecutions (see sidebar).

In the months immediately following the 2001 attacks, many nations tightened their surveillance and prosecution of terrorist activities. Some acted at the urging of the United States, while others were concerned about preventing the spread of terrorism in their own countries. In the European Union, for instance, task forces were established to trace funds that were laundered by terrorist groups. Canada and Mexico arrested dozens of people who might have been connected to the September 11 attacks and then fled the United States. In Germany, where some of the suicide terrorists involved in the September 11 attacks had lived, authorities raided several terrorist cells. International arrest warrants were issued for numerous suspected terrorists, most of whom were hiding in unknown locations.

While debate still swirls around the use of military tribunals over that of federal courts in the United States, the need to investigate and prosecute terrorists remains a worldwide problem. The methods and standards may vary and will undoubtedly change over time, but the end result will remain—to put those responsible on trial and stop their acts of terror.


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Slevin, Peter, and George Lardner, Jr. "Bush Plan for Terrorism Trials Defended," Washington Post, November 15, 2001.

Sonder, Ben. The Militia Movement. New York: F. Watts,2000.

"Terrorist Trials: Missing Someone?" Christian Science Monitor, February 8, 2001.

"Time Trip," Current Events, October 12, 2001.

"Toughening Up; Canada and the United States," Economist, December 8, 2001.

U.S. Department of State, Office for Counterterrorism. "International Terrorism Conventions," Washington, DC: August 17, 1998. Available online at (cited January 23, 2002).

"US v. Bin Laden: Is a Trial a Real Option?" Christian Science Monitor, December 3, 2001.

Vatz, Richard E., and Lee S. Weinberg. "The Unabomber's Twisted Saga," USA Today Magazine, July 1998.

Warner, Mary Beth, et al. "Beseeching the World," National Journal, September 22, 2001.

"A Way Out of the Maze," Economist, July 29, 2000.

Zengerle, Jason. "Infinite Justice; Can Courts Try Terrorists?" New Republic, November 19, 2001.

Gerry Azzata


1796 The British Parliament passes the Insurrection Act, directed at Irish rebels, making secret oathtaking a capital offense.

1940 A trial of Christian Front militia members ends unsuccessfully in New York City.

1972 Palestinian terrorists murder the Israeli Olympic team in Munich; the terrorists who survive the hostage rescue operation are released a month later in exchange for hostages aboard a hijacked airliner.

1981 Ten IRA prisoners die in an Irish prison following a hunger strike aimed at achieving political status.

1985 Italian fascists accused of bombing a Milan plaza in 1980 are acquitted.

1988 Terrorists blow up Pan AM Flight 103 over Locker-bie, Scotland; one Libyan suspect is convicted twelve years later.

1995 United States student Lori Berenson is arrested inPeru and convicted of collaborating with terrorists.

1995 Unabomber Ted Kaczynski is arrested and charged with a package bomb campaign spanning two decades; he pleads guilty three years later.

1996 Islamic militants are sentenced to life imprisonment for the 1993 attack on New York City's World Trade Center.

1997 "Carlos the Jackal" is sentenced to life imprisonment following trial in France.

1998 New York obstetrician Bernard Slepian is killed; abortion opponent James Kopp is arrested in France and extradited to the United States two years later to face trial.

2001 Timothy McVeigh is executed for carrying out theOklahoma City federal building bombing, becoming the first federal prisoner in the United States to be executed in 38 years.

2001 Four Saudi and Jordanian men are convicted of bombing United States embassies in Kenya and Tanzania; Osama bin Laden is indicted for conspiracy.

2001 The September 11 attacks on the World TradeCenter and Pentagon lead to approval of military tribunals in the United States and new legal weapons against terrorism worldwide.

2002 Three ex-members of the Symbionese LiberationArmy are arrested for participation in California robberies and bombings during the 1970s.

Lori Berenson

In the aftermath of the 2001 World Trade Center attack, a great deal of media attention was paid to John Walker Lindh, a young American who fought with Taliban forces in Afghanistan and was returned to the United States for prosecution. Not as well known is the case of Lori Berenson, an American woman imprisoned as a terrorist in Peru. Berenson, a former student at the Massachusetts Institute of Technology, was arrested by the Peruvian government in 1995 and accused of assisting the Movimiento Revolucionario Túpac Amaru (MRTA), a guerilla organization that had plotted to take over the national congress.

Although Berenson claimed that she was merely a political activist helping the poor, a secret military tribunal ruled that she was a leader of MRTA and sentenced her to life imprisonment. The verdict was based largely on evidence that she had rented a house where police arrested a known terrorist and that she had visited the congressional building with the wife of another terrorist.

Berenson received a new trial before a civilian court in 2001, after new evidence was made public showing that she was not a leader of MRTA. Despite diplomatic pressure from the United States and protests from human rights groups, Berenson was found guilty of the lesser charge of "terrorist collaboration" and sentenced to 20 years in prison. Berenson appealed the verdict to a higher Peruvian court, saying, "It is not a crime to worry about poverty and injustice in the world." Ignoring Berenson's protests of innocence and pleas from her parents, the court upheld her sentence in February 2002.

The Judge Versus the Jackal

One of the most feared terrorists of the late twentieth century was "Carlos the Jackal," a Venezuelan whose real name was Ilich Ramirez Sanchez. He was linked to an international network of terrorist organizations, including the Black September group that murdered Israeli athletes at the 1972 Munich Olympics. "Carlos the Jackal" was also believed to be responsible for the 1974 attack on the French embassy at The Hague, in which 83 people were killed. His story was dramatized in the popular film The Day of the Jackal.

Despite a massive manhunt and a death sentence imposed at a trial at which he was not present, Carlos remained at large for another twenty years. He finally was captured in the Sudan in 1994 and tried by a French court, which sentenced him to life in prison three years later.

The French judge who tracked down and tried Carlos was Jean-Louis Brugiere, a controversial figure who began investigating terrorist activities during the 1980s. In addition to convicting Carlos, Brugiere also thwarted several Islamic extremist plots, including one directed at the soccer World Cup held in France in 1998.Under French law, investigating judges have wide authority, such as the almost unrestricted ability to order wiretaps and search warrants or to hold suspects for questioning for as long as 96 nonstop hours without a lawyer present. Such judges can also plant infiltrators in suspected terrorist groups and can make a pretrial finding that a suspect is guilty or innocent.

Brugiere acquired his own nickname, "the Sheriff," based on his tough investigations and the handgun he carried at all times. French civil rights and human rights groups have often protested Brugiere's harsh methods, and even other French courts have found him to be out of line at times. In 1994 he ordered the arrest of 138 suspected Algerian terrorists, who were held for five years without trial until a higher court stepped in. Thirty-one were acquitted of all charges, and most of the rest were convicted of minor charges and immediately released because of the long time they had already served in prison. Nevertheless, Brugiere had support from the French public, which was relieved that he had quickly located the terrorists responsible for a series of subway bombings in 1995.

International Terrorism Conventions

According to the U.S. Department of State's Office for Counterterrorism, a large number of international legal instruments ("conventions") exist which can be used in prosecuting terrorists. Key provisions require parties to the conventions to prosecute offenders or turn them over for prosecution to another party, and to assist in prosecutions brought by other parties. Although the United States is a party to all of these conventions, they are not binding on other nations that have not ratified them, including some nations that might harbor terrorists.

Among these conventions are several that apply to airline safety, sabotage, and hijacking: Convention on Offenses and Certain Other Acts Committed On Board Aircraft ("Tokyo Convention" of 1963); Convention for the Suppression of Unlawful Seizure of Aircraft ("Hague Convention" of 1970); Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation ("Montreal Convention" of 1971); Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (1988); and Convention on the Marking of Plastic Explosives for the Purpose of Identification (1991), which provides for chemical marking of the plastic explosives that have been used in airplane sabotage.

The Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (1973) protects government officials and diplomats, while the International Convention Against the Taking of Hostages (1979) applies to other victims of terrorist kidnappings or similar violence. The Convention on the Physical Protection of Nuclear Material (1979) addresses the unlawful possession and use of nuclear material. The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (1988) provides for prosecution of terrorist activities on board ships, while the Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf (1988) targets terrorist acts on offshore platforms such as oil rigs. The International Convention for the Suppression of Terrorist Bombing (1997) creates a system of international jurisdiction for cooperatively prosecuting the use of explosives or other lethal devices in public places. Finally the International Convention for the Suppression of the Financing of Terrorism (1999) calls for States to sieze terrorists funds and cooperate with other states to block terrorist funding.