March 30, 2010 | Politico

Should Terrorism Suspects be Tried in Federal Court?

Co-Authored with Lee A. Casey

Terrorism suspects like Khalid Shaikh Mohammed, the admitted mastermind of the 9/11 attacks, should be tried in military commissions, not in U.S. courts.

Military commissions are a form of military court that the U.S. has used since the Revolutionary War. Spies, saboteurs, and other fighters who don't obey basic rules of war, such as wearing uniforms, have traditionally been tried and punished by military commissions.

This makes sense. The rules governing military commissions take into account the differences between fighting a war and domestic policing.

Civilian courts can and should set high standards of evidence and police work. Our Constitution requires this. The police control the crime scene when they investigate a crime. Detectives and prosecutors have access to any material evidence and witnesses, and a judge can give them permission to search a suspect's home, car, and other belongings for more evidence.

This simply is not true of warfare. The U.S. military does not control the countries where we fight Al Qaeda the way our police control our city streets. When Al Qaeda members are captured, the soldiers fighting them usually cannot collect forensic evidence. Often, they cannot testify in court. Because warfare is so different from police work, military commission judges can allow the use of some types of evidence—such as hearsay evidence—that are generally excluded from civilian trials.

If we pretend that Al Qaeda fighters are just like any other criminal defendants rather than enemy soldiers in a war, and try them in civilian courts, many will be set free to rejoin their forces and to fight against us again.

*Rivkin and Casey served in the Justice Department during the Ronald Reagan and George H.W. Bush administrations.