From a foreign policy perspective, placing terrorists in front of military tribunals is not the best course of action. Recent media coverage has explained countless reasons why criminally charging terrorist in the United States is bad, but very little has been explained about just why this is the proper course of action.

There are times when military involvement and military tribunals are the preferred course of action. When fighting terrorists in Afghanistan, Iraq, Africa, or a host of other locations outside of the U.S., it is the military that is best suited for these types of operations. Bringing terrorists to military tribunals is appropriate for some terrorists, but not all. Terrorists directly related to a national government, such as via the influence of state sponsored or state directed terrorism, should be treated as enemy combatants because they are ultimately working for or with a foreign power.

The Obama Administration wants to transfer prisoners from Guantanamo Bay, Cuba, into the United States. Under this plan, this prison in Thomson, Illinois, would be renovated to hold the prisoners. (Getty Images)

The Obama Administration wants to transfer prisoners from Guantanamo Bay, Cuba, into the United States. Under this plan, this prison in Thomson, Illinois, would be renovated to hold the prisoners. (Getty Images)

However, not all terrorists fall into this category. It must be remembered that the majority of terrorist attacks inside the United States are carried out by what is considered domestic terrorists. Domestic terrorism is defined as “terrorism practiced in your own country against your own people”[1], or “domestic terrorism involves groups or individuals whose terrorist activities are directed at our government or people in [the] U.S. without foreign direction”.[2]

Examples of domestic terrorism include attacks by radical left wing animal rights extremists and radical right wing militia groups. When abortion doctor George Tiller was shot and killed by an extremist, the murderer, Scott Roeder, was tried in criminal court and found guilty of murder. Although the media did not portray this as an act of terrorism, it was. The 1995 Oklahoma City bombing was an act of domestic terrorism. Timothy McVeigh and Terry Nichols were both tried in criminal court and both were found guilty. McVeigh was executed. Criminal trials are the proper courses of action in these cases, not military tribunals.

Likewise, the terrorist attack on the World Trade Center in 1993 was also a criminal case. Law enforcement investigated it, and the terrorists were tried and convicted in criminal courts. More recently, the Army recruiting office shooting in Little Rock, Arkansas in 2009 was an incident of terrorism. Abdulhakim Mujahid Muhammad was tried in criminal court for capital murder. The plotters of the New Jersey Fort Dix terrorist attack, Dritan Duka, Shain Duka, and Elvjir Duka, were caught because of law enforcement. All three were convicted in criminal courts and sentenced to life imprisonment.

These types of terrorist activities are similar to the terrorist attacks of September 11, 2001, in that the perpetrators acted either alone or in a group, but without the funding or direction of any foreign government. These terrorists may have had connections to international terrorist organizations, but they were not enemy military combatants.

International terrorism is defined as, “activities that involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the U.S. or of any State, or that would be a criminal violation if committed within the jurisdiction of the U.S. or of any State; appear to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by assassination or kidnapping; and occur primarily outside the territorial jurisdiction of the U.S., or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.”[3]

Transnational terrorism is defined as, “terrorism carried out either across national borders or by groups that operate in more than one country”.[4]

The ideologies of the aforementioned terrorists may have been inspired by foreign powers, but were carried out in the U.S. without the leadership or resources of any government. It must be remembered that Al Qaeda is not a government. Radical, extreme Islamic beliefs and followers may be terrorists, but they do not constitute a governmental entity.

If solid evidence could be produced which linked a government to the terrorists, it would change their status. For example, if Iran were supplying resources to terrorist organizations and individuals then those people would be terrorists acting under a foreign power; state sponsored and or state directed terrorism. With this type of circumstance the terrorists become enemy military combatants; the Taliban for example. In these cases military tribunals would be appropriate.

Murders are murders, and murder is a crime. Rapists are rapists, and rape is a crime. Terrorists are terrorists, and terrorism is a crime.  Terrorism in general is defined in the USA PATRIOT Act under Title VIII, Section 802 as, “an act of terrorism means any activity that (A) involves a violent act or an act dangerous to human life that is a violation of the criminal laws of the United States or any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; and (B) appears to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by assassination or kidnapping.” Again, we see criminal activity as a common theme among the various definitions.

Therefore, it makes senses to criminally try terrorist in criminal courts. Historically, not only have terrorists been convicted of their crimes in criminal court, but they often admit to and confess their crimes. Often terrorists will use a trial to verbalize their beliefs.
Military tribunals and executions are not the most effective means to deal with terrorists.  Killing terrorists carries even greater costs as it creates more bitterness among already hostile populations, making the underlying conflicts even harder to resolve. In the eyes of some, it justifies the terrorists’ use of violence and supports the claim that they are fighting ruthless enemies.[5]  However, when justice and law are used it displays peace, understanding, tolerance, and fairness.  This is counterproductive for terrorists and benefits the United States.  “Nothing makes it more difficult for a terrorist to convince people that the government is oppressive and unjust than scrupulously protecting his rights in a public criminal trial.”[6]

Although there are times when the use of the military is appropriate, many times fighting terrorism should rest heavily on the shoulders of those in the criminal justice system. From police officers to attorneys to judges, these are the people best suited to fight terrorism inside the United States.

Some argue that criminally trying terrorists will encourage others to turn to terrorism. However, extremist believers of Islam believe they will obtain their form of pure heaven and will get 72 (or 70 depending on the translations and sources) virgins for their actions. This might follow their beliefs if they die, but what about when they do not die and are instead imprisoned? This could be a form of deterrence.

Others say terrorists in jails will recruit more terrorists. However, high profile terrorists are often placed in solitary confinement and do not have a lot of contact with the general population. The recruiting that is taking place inside prisons is being done by low level terrorists; terrorists who follow radical beliefs but were arrested, charged, and convicted of other crimes. Because of numerous frozen assets, terrorists are turning to new ways to make money for their cause. This includes various forms of theft, fraud, money laundering, ATM scams, telemarketing scams, drug sales, and more. These terrorists have been placed in prison for “normal” crimes not for being involved in terrorist attacks; even though that is their ultimate cause. It is these individuals which must be monitored in prisons and jails.

If terrorism is a federal crime and terrorists are charged in federal court, then it should be the federal government which pays the bill for all costs incurred; to include security. Neither cities nor states should have to pay for theses trials, especially in such hard economic times as we are experiencing today. The federal government would have to pay for military tribunals anyway.

Although there are many reasons to try terrorists in military tribunals there are more reasons to try them in criminal courts. This is the course of action that will best fight terrorism over the long run. We must remember international cooperation is vital to counterterrorism and other nations must do the same; most nations already do. The United States can build stronger relations in foreign affairs by practicing the principles on which the nation was created. From a foreign policy perspective, criminal trials are better than military tribunals for bringing justice to most terrorists.

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1. Princeton University. Wordnet. http://wordnetweb.princeton.edu/perl/webwn?s=domestic%20terrorism

2. Proquest. Discovery Guides. http://www.csa.com/discoveryguides/homeland/gloss.php

3. Lectric Law Library. http://www.lectlaw.com/def/i058.htm

4. International Politics on the World Stage Brief. Seventh Edition. Glossary http://highered.mcgraw-hill.com/sites/0073526304/student_view0/glossary.html

5. Clarke, Ronald V. and Graeme R. Newman.  2007. Police and the Prevention of Terrorism.  Policing: A Journal of Policy and Practice. Oxford University Press.

6. German, Michael. 2005.  Squaring the Error. Law vs. War: Competing Approaches to Fighting Terrorism. Strategic Studies Institute. July.