The Secrecy Problem in Terrorism Trials

June 7, 2005

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The legal landscape of the Nation's fight against terrorism remains unsettled. Remarkably, the questions still unanswered are where and how captured terrorism suspects should be brought to trial. The government presently lacks any clear or consistent policy. Shortly after the September 11th attacks, President Bush announced the creation of special new military commissions to be available to try certain non-citizens suspected of terrorism. The establishment of the new commissions was and continues to be contentious, yet they have not seen much use to date. The rollout of the commissions was bogged down for more than two years while the Department of Defense hammered out their rules and procedures behind closed doors. Four suspects held in Guantánamo, all non-U.S. citizens captured abroad, were eventually charged and have been brought before the commissions in initial, pre-trial sessions. But all commission proceedings have since been halted pending the outcome of litigation in the federal courts after a district court found that the commission's rules violated military and international law.

This report aims to advance this debate and, along the way, to identify areas in need of congressional action by exploring the central question at stake: How should we reconcile the competing demands of secrecy, fairness, and accurate decision-making in terrorism trials surrounding habeas corpus?

In addition to written sources, this report draws from over twenty detailed interviews with a range of individuals possessing extensive first-hand experience in terrorism investigations and prosecutions.  Those interviewed include lead prosecutors and defense counsel involved in the four most significant terrorism cases of the 1990s: the 1993 World Trade Center bombing trial; the trial of Sheikh Omar Abdel Rahman and others for the so-called "Day of Terror" plot, involving a failed scheme to blow up vaious New York City landmarks on a single day; the trial of Ramzi Youself for the "Bojinka" plot, a failed Al Qaeda plan to blow up a dozen airliners crossing the Pacific over a 24-hour periodk; and the trial of four Al Qaeda members for the 1998 bombings of the U.S. embassies in Kenya and Tanzania.  Current and former officials from the Department of Justice, Federal Bureau of Investigations, and Central Intelligence Agency were also consulted.


Serrin Turner was the Associate Counsel for the Liberty & National Security Project at the Brennan Center for Justice.  After graducating from Harvard Law School (2000), he clerked for Judge Sandra Lynch of the U.S. Court of Appeals for the First Circuit.  Prior to joining the Brennan Center, he served as an Honors Program attorney at the Federal Programs Branch of the U.S. Department of Justice.  

Stephen J. Schulhofer is the Roberty B. McKay Professor of Law at NYU Laww School.  He is the author of Rethinking the Patriot Act: Keeping America Safe and Free (Century Foundation Press, 2005); The Enemy Within: Intelligence Gathering, Law Enforcement and Civil Liberties in the Wake of September 11 (Century Foundation Press 2002); and may articles on the nexus between liberty and national security in the struggle against terrorism.  he also writes extensively on other aspects of police practices, criminal law, and criminal procedure.  Before coming to NYU, from 1986 until 2000, he was director of the Center for Studies in Criminal Justice at the University of Chicago, where he was the Julius Kreeger Professor of Law, and he served for many years as a consultant to the United States Sentencing Commission.  He is a graduate of Harvard law School and clerked for two years for Justice Hugo L. Black.