TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

Prosecuting Terrorists in USCriminal CourtsOn 13 November 2009, Attorney General Eric Holder announced his decisionto try Khalid Shaykh Mohammed and several other men accused ofparticipating in the 9/11 attacks in civilian court in New York City. Holder’sannouncement served to reinvigorate the dispute regarding federal terrorismprosecutions, as did the subsequent White House backpedaling on holding thetrials in Lower Manhattan.The debate over the policy benefits of trying terrorism suspects in domesticcriminal courts rather than in military tribunals is well known. Less understoodare the legal issues involved in trying a terrorism suspect in federalcourt. This section will examine the various legal tools that are available toprosecutors and law enforcement officials to investigate, charge and ultimatelytry terrorists. It will also highlight legal problems that can arise during terrorismprosecutions. Finally, it will provide an overview of sentencing practicesin terrorism-related cases.Investigative ToolsAll the law enforcement tools used in investigating criminal activity are availablein investigating terrorist suspects. These tools include wiretaps, subpoenasfor financial and travel documents, grand jury testimony and police questioning.Prosecutors also have the option of using material witness subpoenasto detain suspects who may possess information material to a terrorism trial.For example, a material witness subpoena was used to detain suspected terroristJosé Padilla, for a month following his arrest in a Chicago airport. 331Commonplace investigative techniques, however, often do not prove sufficientin terrorism cases, particularly given the extraordinary danger to public safetythat such cases present. This is compounded by the fact that suspects and evidencemay be located overseas. Thus, Congress has authorized a number ofBelfer Center for Science and International Affairs | Harvard Kennedy School119

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