Abstract

Excerpted From: Abigail S. Grand, Terrorism Should Not Be a Crime: How Political Labels Are Dangerous to American Democracy, 30 William and Mary Journal of Race, Gender, and Social Justice 171 (Fall, 2023) (294 Footnotes) (Full Document)

For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.

It is difficult to conjure a worse criminal act than a terrorist attack on a civilian population. How then, could one argue that the best method to prosecute terrorists in America is to not prosecute “terrorism” at all? This Note examines the implications of the “terrorism” label in the context of post-9/11 America, and it proposes that the best way to handle crimes relating to terrorism is to charge individuals with traditional criminal offenses in our federal civilian criminal court system.

Following the September 11th attacks, a moral panic surrounding terrorism swept across America. Part I of this Note addresses how this frenzy empowered the executive branch to overstep its Constitutional restraints and threatened the delicate balance of powers central to American democracy. Shortly after 9/11, President Bush alleged that Article III courts were an unfit venue to prosecute those responsible; his administration instituted a new system of military commissions unprecedented in both their breadth and inefficiency. It shielded the operation from intervention by Congress or the Judiciary by opening a new detention center in Guantanamo Bay, Cuba, where several detainees were tortured and held incommunicado for extended periods of time. Two decades later, the federal government still struggles in its efforts to close the facility, where thirty detainees remain.

Part II of this Note proposes, as many have before, that Article III courts are the most adept forum to prosecute crimes relating to terrorism. Historically, federal courts have been the preferred venue for such trials, competently balancing the interests of the government and the rights of defendants. Despite the proponents of the military commissions' concerns surrounding the ability of federal courts to hear cases implicating national security interests, the most dangerous weakness of Article III courts actually lay in the over-politicization of terrorism trials. Conducting terrorism trials as similarly as possible to quotidian criminal trials not only increases the likelihood of prosecutorial success, it also better safeguards defendants from infringements on their due process rights.

Lastly, Part III of this Note addresses how sensationalizing the threat of “terrorism” perpetuates discrimination and violence against Muslim Americans. The 9/11 attacks compounded upon pre-existing Islamophobia in America, which mutated into full-scale violence against Muslims. The federal government's systematic policing and surveillance of Muslim Americans exacerbate this prejudice. Its official and unofficial policies, combined with charged statements made by various public officials, reveal a widespread animus towards the Islamic faith. Masquerading behind a shield of “national security,” the War on Terror has become a de facto campaign against Muslim Americans and non-Americans.

This Note calls for a dismantling of the United States' current method of prosecuting terrorism. However, the proposed fix relies on a reservoir of tools that the judicial branch has employed for over two centuries. We should first abandon the military commissions and shut down Guantanamo Bay; both operations leave an embarrassing stain on our nation's moral standing in the international community. If sufficient untainted evidence exists to support a prosecution of remaining detainees, it should take place in federal courts. Otherwise, the government should bear the consequences of its own transgressions and release these forever prisoners. Moving forward, prosecutors should charge individuals in terrorism cases for their underlying criminal actions, rather than rely on material support statutes and political innuendos to secure a conviction.

The threat of terrorism is undoubtedly real, but we must not allow our fear of external bad actors to blind us to internal threats to our democracy.

[. . .]

“Terrorism” is a political term, not a criminal act. It is a term that has been used to quash political dissent, commit human rights abuses, and discredit opponents.

In the two decades since 9/11, the moral panic in America surrounding terrorism has led to several unsavory consequences. First, it permitted the Government to egregiously violate the integrity of hundreds of foreign nationals by imprisoning them for years in Guantanamo Bay, a detention facility with an indelible past marred by torture. Second, it emboldened the executive branch to threaten the checks and balances inscribed in our Constitution, which the Bush Administration did by stripping federal courts of their ability to prosecute those responsible for the 9/11 attacks. These insults to the judicial branch have proven to be unfounded; federal courts remain open and ready to hear cases involving terrorism. However, attempts to relate substantive crimes to “terrorism” politicizes trials, jeopardizing defendants' rights and the prosecution's chances at success. Third, sensationalizing the threat of “terrorism” has imperiled the livelihoods of Muslims in both America and abroad. It stigmatizes their religion and renders them victims to discrimination by the government and the public.

After the attacks of September 11th, Americans waited in horror, anticipating another attack. The U.S. government launched a witch hunt against an unknown number of enemies. Little did we realize, however, long before the first detainees were surreptitiously flown into Guantanamo Bay, a great threat had already planted its seed in the homeland: fear. The moral panic surrounding terrorism continues to chip away at the liberties, values, and equality that Americans hold so dear.

Abigail S. Grand is a 2024 Juris Doctor Candidate at William & Mary Law School. She holds a BA in International Studies and French from the College of Charleston.