The Challenges of Trying Terrorists as Criminals
Because of the asymmetric effects of many terrorist acts, the public and the press ensure that governments place a very high value on the prevention of terrorism. But dealing with terrorists is problematic for the executive branch, charged as it is with protecting the public. As Alexander Hamilton put it in the Federalist Papers: “Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates . . . to be more safe [nations] at length become willing to run the risk of being less free.” Certainly, if they consider it is not possible for terrorists to be convicted, governments will consider
• changing criminal procedures and truncating the rights of accused terrorists to facilitate convictions
• detention without trial
• rendition (in all of its senses
• military or paramilitary solutions
• specialist courts or tribunals.

Most if not all of those responses may infringe the rule of law. Equally, there is much at stake for the judicial branch in this context. Thus, when terrorism charges are brought, courts must strive to balance the rights of the parties, particularly the accused, on the one hand and national security on the other. Special and sometimes unique questions that arise in such cases include justiciability, deference to the other branches of government, admissibility of evidence, prosecutorial duties of disclosure, and the effect on the press and on public confidence of any departure from open justice.

These issues, which are at the heart of public debate in the United States and a number of ally nations, require continued and close attention. An interdisciplinary colloquium held in January 2008 in Washington, D.C., considered some of them. A feature of the conference was the bringing together of lawyers (including judges, prosecutors, and human rights and international lawyers), strategists, terrorism experts, and intelligence, and law enforcement officials. International representatives also attended, bringing perspectives of U.S. allies, notably, the United Kingdom and Australia, to the debate. A summary of the course of discussion follows.