This essay has placed before its readers many of the arguments for and against holding terrorism trials in federal courts. Based on the evidence developed in this essay, most of the arguments against the use of federal courts have been shown to fall. There have not been significant or novel problems relating to speedy and public trial requirements, availability of defense counsel, politicization of jurors, pretrial publicity and bias, the authentication of evidence, Miranda warnings, illegal searches and seizures, the introduction of classified material, security, orientation of the system, or judicial expertise.
“For all of their difficulties, civilian trials are superior to their most likely replacements, military commissions.” There are numerous political and legal grounds for rejecting military commissions. Any claims of military commissions’ supposed convenience or greater likelihood for “successful convictions” have been disproved by their track record; federal courts have proven their ability to handle hundreds of terrorism cases effectively, while military commissions can be considered as having failed more often than not. Military commissions and a framing of “war” have strengthened terrorists at our expense, reduced international cooperation with our courts, and weakened the rule of law. Trying terrorists in federal courts is the most prudent and appropriate method of rectifying these harms.
The primary arguments that do provide reason for pause include the potentially higher monetary costs and the possibility that accused terrorists’ incorporation into the system might weaken the protections afforded to other criminals. The costs are not necessarily higher for federal courts than other viable options, and the effects on the system will not necessarily be negative; yet these issues are worthy of continued inspection and deliberation.
In examining the comparative costs of federal trials and military commissions, society would do best to rely on trial security experts rather than the less trustworthy claims of politicians that lack even a basic report of their foundation. It is more than reasonable to expect precise data and cost estimates to elucidate the large figures that have been thrown around as political rhetoric in heated yet potentially groundless debates. Yet it seems, as with many of the arguments presented by critics in this essay, that some are driven to their arguments not by reality, but rather by mere political utility. As a recent New York Times editorial criticizes,
An election is coming, so the Republicans are trying to scare Americans by making it appear as if the Democrats don’t care about catching or punishing terrorists. It’s nonsense, of course, but effective. The be-very-afraid approach helped former President George W. Bush ram laws through Congress that chipped away at Americans’ rights…Congress should be helping the president fix those problems, not piling up sound bites for November.
As explained in this essay, costs have been a continuing hurdle for attempts to improve the criminal justice system, and terrorism trials in federal courts may not be an exception. Yet it would seem that given the enormous political, ethical, and legal costs of military commissions, Americans are not unlikely to garner the additional resources that might be required for federal trials.
As for the effects of terrorism cases on other criminals’ trials, it seems it would be helpful to examine the historical trends in England, as well as other countries that have had more extensive experience with terrorists similar to Al Qaeda. A careful analysis of past terrorism cases in England as well as the current workings of the system would serve to elucidate these matters and potential effects on the American system. However, it is clear that even with such information, it would be difficult to predict the long-term effects on the American system due to differences in national jurisprudence, context, and circumstances.
Despite minor imperfections that result from the presence of jurors, the simple yet all-important fact that the jury system is based on the idea of impartiality, which is wholly lacking in military commissions, strongly suggests their use in terrorism cases. Respect for the rule of law and a dedication to justice have been fortified by the Obama administration’s attempts to pursue terrorism trials in federal courts; as Harold Koh reported at a recent American Bar Association event, “The administration’s changes…have been meaningful. The United States…can now defend its national-security policies
as fully compliant with domestic and international law under common and universal standards, not double standards.”
Many judges and attorneys have been outspoken in their confidence to continue to successfully manage terrorism trials. In the case of United States v. Ressam (2005), Judge John Coughenour declared, “Our courts have not abandoned our commitment to the ideals that set our nation apart. We can deal with the threats to our national security without denying the accused fundamental constitutional protections.” Judge Coughenour further stressed that Mr. Ressam, a foreigner intent on killing Americans, “received an effective, vigorous defense, and the opportunity to have his guilt or innocence determined by a jury of 12 ordinary citizens,” and that the entire proceeding took place “in the sunlight of a public trial. There was no secret proceedings, no indefinite detention, no denial of counsel.” After the Ressam sentencing hearing, U.S. Attorney John McKay said he “agreed with the judge’s assessment that the U.S. legal system could handle cases such as Ressam’s.” Mr. McKay added, “The sentence sent an important message to would-be terrorists around the world,” that “in the United States a fair trial will be given…and where it is found that terrorism was committed, a lengthy prison sentence will be imposed.” Earlier, in sentencing Richard C. Reid to life in prison, Judge William G. Young of the Federal District Court in Boston expressed his conviction that terrorists must be treated as criminals and tried in federal courts: Judge Young “spoke scornfully of the notion that the defendant was somehow ‘a soldier in any war…You are not an enemy combatant. You are a terrorist.’ And what we do with terrorists, he said, is ‘hunt them down one by one and bring them to justice.’” Even the trial of Zacarias Moussaoui, a famously challenging case which dealt with singular issues due to the defendant’s assertion of his right to defend himself in court and continued efforts to make a mockery of the American justice system, Judge Leonie Brinkema strongly defended the federal judiciary as the proper forum for terrorism trials and has emerged as an impassioned advocate for this cause. Rudy Giuliani, after Mr. Moussaoui’s trial, said, “I was in awe of our system. It does demonstrate that we can give people a fair trial.” The words of these judges and lawyers demonstrate professionals’ commitment and confidence in the federal courts, which ought to assist the American public in dismissing lingering doubts.
Terrorism defendants are not predestined to receive unfair trials. They need not be treated as Joseph K. in Franz Kafka’s The Trial, who was arrested “without having done anything wrong,” tried by an appallingly inaccessible, unpredictable, and incomprehensible system, and executed “like a dog.” To prevent this unnecessary and unacceptable treatment, those accused of terrorism should be tried in the light of day. They must be brought to the established, transparent, reputable, and successful federal courts, where protections ensure that individuals receive fair treatment and that the system promotes accuracy and convicts the guilty while freeing the wrongly accused. And there are certainly individuals who have been wrongfully accused; of the 779 imprisoned in Guantánamo since 2000, 705 have been released or cleared for release. It behooves the government to pursue these values, thereby supporting the American rule of law and fortifying important and deserved confidence in the American justice system.
These values have long been part of the American way. “The American tradition of zealous representation of unpopular clients is at least as old as John Adams’s representation of the British soldiers charged in the Boston massacre.” After the 1770 Boston Massacre, where British soldiers had fired on American civilians in a clash that helped spark the American Revolution, the American public was outraged. Rather than lock them away indefinitely, or punish them without due process, those British soldiers were afforded a fair trial. Two were convicted and the rest were acquitted. John Adams, who agreed to assist in the defense of these extensively unpopular figures, declared in his closing statement, “’Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence. Nor is the law less stable than the fact…To your candor and justice, I submit the prisoners and their case.’ The best weapon we have against terrorists is not our passions. It is the rule of law.”
As Mr. McCarthy has said, “Trials are won every bit as much outside as inside the courtroom.” The United States must do what it can to win these cases, not by taking shortcuts to potentially erroneous convictions and shortchanging the accused and the American people of the challenges and benefits essential to the rule of law, but by pursing a path that promotes accuracy and justice in the federal courtroom. To reiterate the quotation with which this essay started.
No description can do justice to how intense, rewarding, and preposterous a terrorism trial is. The patina of danger and death hang over the proceedings. It is a thrill and a source of patriotic pride to observe the world’s greatest legal system grant the full flower of due process to our committed enemies and to see them, nonetheless, brought to heel.
 There has been difficulty regarding attorney-client privilege because its protections have been infringed; Chapter 3 of this essay has shown why such violations may be undesirable.
 Precht, p.x.
 “The Politics of Fear.”
 The Author hopes to continue research of these questions. At present, the author has encountered only limited discussions of such issues.
 Precht, p.169.
 Savage, “Obama Team Is Divided on Anti-Terror Tactics.”
 United States v. Ressam, No. 99-cr-00666 (W.D.Wash. July 27, 2005); Zabel and Benjamin, 2009.
 Wittes, Law and the Long War, p.172.
 A critic might argue that judges and attorneys have an obvious interest in maintaining the strength of the federal courts, which provide their salary. In response, the author acknowledges that the potential for such dynamics is not impossible, but maintains that the judges and attorneys quoted for their support are in no danger of losing their employment based on their remarks, and further maintains that if these professionals believed that the incorporation of terrorism trials would cause problems and embarrassment to their office, they would have a significant incentive to speak out and encourage the removal of such cases to military commissions. American courts have not been shy in declining (both explicitly or implicitly) to decide cases that would result in their embarrassment. Justice Stephen Breyer, in a lecture at Yale Law School, explained that such decisions are, somewhat surprisingly, sometimes necessary to maintain the public’s faith in the court system. Breyer.
 Kafka, pp.3, 231.
 Precht, p.169.
 McCarthy, pp.294-5.
 Ibid., p.294.