The Courts and Terrorism: Transatlantic Observations

This conference, hosted in partnership with the Magna Carta Institute, will focus on courts, national security, and how transatlantic counterparts handle alleged terrorism suspects through the criminal justice system.

Participants will consider lessons learned before and after 9/11 regarding matters of detention, evidentiary standards, and trial procedure in terrorism cases; the differences among countries; the successes and failures of different strategies, and the potential need for structural and statutory reforms. Some of the details involved in these courts would introduce elements that are currently in place in the European and British judicial systems, among them extended pre-trial detention, and special evidentiary standards – the focus of the day’s discussion. In addition to lessons learned, the panels will examine the viability and potential benefits of enhancing the compatibilities among countries in the transatlantic alliance.

SCHEDULE OF EVENTS

9:15 a.m.

Keynote

10:00-11:30 a.m.

Terrorism, the Courts, and National Security: An Overview

Judge Kenneth Karas, Peter Clarke, Dr. Didier Rouget

Moderator: Karen Greenberg

National security courts raise the specter of protecting classified information that could be harmful to national security. What does the European experience tell us, if anything, about the need for special evidentiary standards for terrorism trials?  What does the American experience with terrorism trials – beginning with the trial for the first World Trade Center bombing and extending to the present day?  Specifically, is anything needed beyond the Classified Information Procedures Act [CIPA] that currently applies to Article 3 courts? What protections does CIPA provide the government? What is lacking in this regard in the system as it now stands? How might further protections undermine the fairness of the system for defendants? Will changes in evidentiary standards enhance the effectiveness of transatlantic cooperation?

11:30-1:00 p.m.

Terrorism Trials: National and International

Marshall Miller, Ed O’Callahan, Barry Sabin, Jean-Marc Sorel

Moderator: Rick Pildes

Terrorism cases are often international not only in scope but in the location of witnesses and defendants. How do panelists assess the difficulties of trying cases where defendants and/or witnesses are located in more than one country? What new measures might be introduced to make the taking of depositions of persons in foreign countries more viable?  How should these depositions be arranged with countries that do not have appropriate relations with the US? How might this impact US cases as well as the transatlantic judicial relationship? Overall, this area of inquiry relies on the definition of terrorism. Given that fact, is it possible to protect international criminal prosecutions from becoming politicized?  Specifically, to what extent might the internationalization of criminal prosecutions politicize the process in a manner that would create more conflict and potentially impair justice?

1:00-2:00 p.m.

Lunch Break

2:15-3:45 p.m.

Detention and Systemic Challenges

Stephen Schulhofer, Joshua Dratel, Gabor Rona, Dr. Didier Rouget, Hélène Tigroudja

Moderator: Scott Horton

How has pre-trial detention fared in the European system? What safeguards against loopholes and abuses have been built into the system? What benefits would American courts gain by such additions? What might US courts, its citizens and institutions, potentially lose with a preventive detention system? How have European courts dealt with issues related to civil liberties and human rights abuses? Can the US foresee a preventive detention statue that meets constitutional standards.