Is It Time for a Federal Terrorist Court: Terrorists and Prosecutions: Problems, Paradigms, and Paradoxes
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IS IT TIME FOR A FEDERAL TERRORIST COURT?
TERRORISTS AND PROSECUTIONS: PROBLEMS,
PARADIGMS, AND PARADOXES
Harvey Rishikof
Robert King Merton, the noted American sociologist, was renowned
for posing a devilishly simple question whenever investigating social phe-
nomena: How did this come to be so?''2 In the academic-legal world, this
seven-word question usually spawns oceans of ink and competing constitu-
tional frameworks. Congress' recent passage of the USA Patriot Act,3
the proposed passage of the Domestic Security Enhancement Act of 2003,4
the President's decision (in the wake of the Joint Resolution5 for the au-
thorization of the use of force against terrorism) to establish military com-
missions to prosecute non-citizens in the war against terrorism,'6 and the
subsequent issuance of trial procedures,7 have similarly produced a torrent
of public legal commentary and constitutional debate in an attempt to an-
swer the Merton query.8
Visiting Distinguished Professor, National War College, Washington, DC, 2002-
2003; Professor of Law, Roger Williams University School of Law, Bristol, RI. I would
like to express my appreciation to the editorial board of the Suffolk Journal of Trial & Ap-
pellate Advocacy and thank Stephen R. Bentfield and Michael R. Christy for their research
assistance on a number of issues involved in the article. I would also like to thank Angela
Parham for her assistance.
2 Robert Merton, THE ECONOMIST, March 15-21, 2003, at 81.
3 See Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terror Act, Pub. L. No. 107-56, 115 Stat. 272 (codified in scat-
tered sections of titles 8 and 50 U.S.C.).
4 See Domestic Security Enhancement Act of 2003, - - -, 108th Cong. (2003) (draft
legislation not yet introduced), at www.pbs.org/now/politics/patriot2-hi.pdf; see also Mat-
thew Brzezinski, Fortress America: The Homeland Security State, How Far Should We
Go?, NEW YORK TIMES MAGAZINE, February 23, 2002, at 38.
5 See S.J. Res. 23, 107th Cong., 115 Stat. 224 (2001) (authorizing use of U.S. armed
forces against those responsible for September 11, 2001 attacks).
6 See Military Order of November 13, 2001 - Detention, Treatment, and Trial of
Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,831-36 (November 16,
2001) [hereinafter Military Order of November 13, 2001 ].
7 See Military Commission Order No. 1, March 21, 2002, at
http://www.dtic.mil/whs/directives/corres/mco/mcol.pdf (copy on file with the Suffolk
Journal of Trial & Appellate Advocacy) [hereinafter Military Commission Order].
8 See Alfred P. Rubin, Focus: September 11, 2001 - Legal Response to Terror, 43
HARv. INT'L. L.J. 65 (2002); Matthew Brzezinski, Fortress America: The Homeland Secu-
rity State, How far should we go?, NEW YORK TIMES MAGAZINE, February 23, 2002, at 38.](ViewImageLocal?handle=hein.journals/sujoriapv8&div=5&collection=&method=preview&ext=.png&size=3)
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Is It Time for a Federal Terrorist Court: Terrorists and Prosecutions: Problems, Paradigms, and Paradoxes
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