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Eric Friedman
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Kathryn Inman


Argues it Would be “Self-Defeating” to Foreclose the Federal Courts from Prosecuting Terrorism

New York, March 3, 2010 – The New York City Bar Association has written a letter to Congress expressing “profound concern” and “strong opposition” to House Bill 4556 and Senate Bill 2977, which would cut off Department of Justice funding for prosecution of terrorism cases in U.S. courts in favor of military commissions.

“Enactment of this bill would deprive the Department of Justice of what has proven to be its most effective and fairest enforcement weapon to prosecute and bring suspected terrorists to justice,” the letter states, making the case that the Federal Criminal Justice System is actually far superior to military tribunals in bringing terrorism suspects to justice. The letter, authored by six Association committees, compares the record of military tribunals and the federal courts over the past eight years, with the former having put just three suspects on trial; two served relatively short sentences, and one is free. By contrast, since 9/11, over 300 terrorism suspects have been successfully prosecuted and sentenced in federal court.

“Accordingly,” the letter states, “it would be self-defeating to foreclose [the federal courts] as an avenue for prosecuting terrorism.”

The letter further outlines the respective merits and demerits of the federal court system and military tribunals. Federal law allows for prosecution of “a wide variety of threatening behavior,” and “is even more expansive when one considers that conspiracy, fraud, accessory liability and other crimes can also trigger” investigation and prosecution of these matters. As an example, the letter references the case of Zacarias Moussaoui, whose arrest on immigration charges ultimately led to his guilty plea on serious terrorism charges and his imprisonment for life.

Federal courts can adequately protect classified information through the Classified Information Protection Act, the letter states, and “federal-court prosecutions have yielded just, reliable results— and in most cases severe sentences—without any demonstrated leaks of classified information, all while maintaining our commitment to the due process of law.”

By contrast, the letter refers to the “uncertainty” surrounding how military commissions would work and whether they would comport with due process and the rule of law, thereby further delaying justice by opening avenues of appeal. “Indeed,” the letter states, “the overuse of military commissions is frequently cited as grounds for attacking the human rights records of foreign countries.”

Military commissions are far less flexible, argues the letter, noting that there are “legal uncertainties as to whether material support and conspiracy are war crimes and, if not, whether they could be prosecuted by military commissions.”

Additional arguments the letter makes against the bill include that it would amount to “an unprecedented intrusion into the judgment and discretion of the Executive branch to enforce federal law that raises grave questions under our system of separation of powers.”

The letter is signed by the chairs of the City Bar’s Task Force on National Security and the Rule of Law and the committees on International Human Rights, Military Affairs, International Law, Federal Legislation, and International Affairs.

“The principal lesson we have derived from our work is that full and faithful respect for the rule of law strengthens our country,” the letter states. “Our system of justice—based on time-tested constitutional and international norms—is a source of strength, not vulnerability.”

In conclusion, the letter calls upon Congress “to leave to the judgment of the Department of Justice the choice between the federal criminal justice system and military commissions as specific conditions dictate.”

Read the City Bar’s letter here:

About the Association

The New York City Bar Association ( was founded in 1870, and since then has been dedicated to maintaining the high ethical standards of the profession, promoting reform of the law, and providing service to the profession and the public. The Association continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.