Monday, August 9, 2010

Vladeck on Article III Trials for Alleged Terrorists

Professor Stephen Vladeck (American U., WCL) last week released an American Constitution Society Issue Brief, Trying Terrorism Suspects in Article III Courts: The Lessons of United States v. Abu Ali, arguing that Article III courts can handle the trials of suspected terrorists, balancing the interests of prosecuting terrorists and protecting fundamental procedural rights.

Vladeck's unique contribution to this debate is his focus on the trial and appeal of Abu Ali, a U.S. citizen born in Texas but residing and studying in Saudi Arabia at the time of his arrest.  Ali was subsequently detained  and interrogated in Saudi Arabia and transferred to the United States for trial in Alexandria, Virginia. 

Vladeck argues that Ali's case raised particularly interesting and unique issues, but that the Article III courts were flexible enough to deal with them:

In sum, then, Abu Ali emerges as an unvarnished example of how the civilian criminal justice system can handle high-profile criminal terrorism cases raising novel logistical challenges.  The thoughtful procedure devised by Judge Lee to allow the [Saudi witnesses] to testify while protecting the defendant's Confrontation Clause rights are a model that courts should follow (and have followed).  More generally, this innovative procedure demonstrates how technology and national security can actual help cabin proposed changes to the Federal Rules of Criminal Procedure.  After all, if such innovation can exist within the present framework, what need is there for hasty changes to rules that have long served the interests of justice?  The principled disagreement over whether Abu Ali's interrogation constituted a "joint venture" raises a fascinating question of constitutional criminal procedure that turns in no meaningful substantive way on the fact that his was a terrorism trial.  And the clear Confrontation Clause violation resulting from the trial court's use of the "silent witness" rule shows both the settling effect of harmless error doctrine and the extent to which the flaws sometimes derive not from the laws, but from the judges who apply them.

SDS

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