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Some individuals reject Article III courts as a forum for bringing terrorist suspects to justice on the grounds that the ordinary judicial system cannot handle such cases. As an empirical matter, this claim is simply false. Since 2001, myriad terrorism trials have progressed through the criminal system. The U.S. Department of Justice (DOJ) reports that between 2001 and 2010, there were 998 defendants indicted in terrorism prosecutions. Eighty-seven percent of the defendants were convicted on at least one charge. According to the Executive Office for the U.S. Attorneys, from FY 2004 to FY 2009, there were 3,010 terrorism prosecutions. It reported 2,663 terrorism convictions during the same time period. What these numbers demonstrate (reporting inconsistencies not-withstanding) is that Article III courts have routinely, and successfully, managed international and domestic terrorist cases. Nevertheless, there are important concerns driving such critiques that deserve further scrutiny.

The author first considers the most common objections to pursuing terrorist cases in the ordinary judicial system. The arguments fall into five categories: rules of evidence, the problems created by classification, the right to call and confront witnesses, the right to a speedy and public trial by an impartial jury, and the right to self-representation. Critics look to these areas to suggest that either detention or military commissions would be a more appropriate way to handle individuals suspected of terrorist activity.

Second, she suggests that there are risks in sidestepping Article III courts. Lowered standards that mark the alternative realms impact due process, public perception, and conviction. Transferring cases out of the civilian system undermines citizens’ rights: namely, the right to participate in the administration of justice. The creation of alternative venues creates forum competition, which may lead to an abrogation of justice. Pursuing cases through the military system may also undermine judicial authority and contribute to a perception of incompetence with regard to the criminal system.

Third, as an empirical matter, many of the claims about the incompetence of Article III courts do not play out in practice. Here, by way of illustration, the author focuses on a case currently underway in Manhattan, United States v. Abu Ghayth. Some procedures (not used in this case) offer further ways to address the difficulties endemic to terrorist prosecution. While many of the objections can be overcome, one—the right to self-representation—proves more troublesome. Although it occurs in only a small fraction of cases and there are a handful of ways to address it, each of the solutions carries consequences. The problem, nevertheless, is not unique to the Article III context and thus vitiates not in favor of moving to a system of military commissions, but instead a re-examination of the issues associated with denying a defendant a right to appear pro se and appointment of standby counsel to address the underlying purpose of the right itself.

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38 Harv. J.L. & Pub. Pol'y 105-143 (2015)