Where are Terrorists to be Tried: A Comparative Analysis of Rights Granted to Suspected Terrorists

Abstract

Post 9/11, much disagreement and uncertainty remains about one of the seminal issues in counter-terrorism: where to try terrorists. While much discussed, this issue is not resolved. This article will analyze the issue from a comparative perspective by examining American, Israeli, Russian, Indian and Spanish approaches. Though the five nations' judicial and legal regimes differ, a comparative approach enables policy makers, academics and the public to develop a more global perspective on the issue and possibly to adopt other nations' models.

In the context of articulating the most appropriate forum for trying terrorists, the considerations and ramifications are numerous. The guiding principle must be the obligation of civil, democratic society to respect and uphold the rule of law. The analysis will include a discussion of how each of the nations defines suspected terrorists, before what court of law are terrorists brought, what alternatives are considered and whether fundamental protections are guaranteed.

A critical issue in determining the appropriate forum is the terrorist-defendant's right to confront his accuser. In the American criminal and constitutional law context, the 6th Amendment guarantees a defendant the right to be confronted with the witnesses against him. Should that right be granted to the terrorist-defendant? Bringing terrorists to trial would potentially require the exposing of intelligence sources. This is a major dilemma that will be addressed throughout this article.

Additional issues that must be addressed include: 1) representation - will the defendant be entitled to choose counsel or will counsel be assigned; 2) will the defendant be tried by jury or by a bench trial; 3) will the trial be conducted by an independent judiciary; 4) will the defendant be granted the right to appeal and if yes, 5) to what court.

Keywords: trying terrorists, right to confront witnesses, right to counsel, US, Israel, Spain, Russia, India, independent judiciary, bench trial, right to appeal, rule of law, comparative judicial regimes, fundamental protections, suspects, 6th Amendment

JEL Classification: K14, K33, K42, K49