Are Two Judicial Systems Better Than One?: A Look at the Debate Between Military Tribunal Commissions v. Federal Civilian Trials in Terrorism Cases

Lindsey Overton, Albany Government Law Review Member


Khalid Sheikh Mohammed and four other individuals who are accused of planning and executing the September 11, 2001 attacks have been in U.S. custody since shortly after the attacks occurred and have yet to be prosecuted.[1] Although proceedings for a trial by military commission had commenced, in November 2009 Attorney General Eric Holder announced that the four men would be moved to New York and tried in federal court.[2] New York officials quickly objected due to concerns over security and the costs associated with such a trial.[3] The Obama administration subsequently suspended its plans for federal civilian trials; however, more than a year later, no action has been taken to bring the five accused terrorists to justice.[4]

Shortly after the September 11, 2001 attacks on the United States, then President George W. Bush established military tribunal commissions to try individuals accused of partaking in acts of terrorism, particularly those acts associated with the September 11th attacks.[5] Since the employment of the military tribunals, there has been a heated debate regarding the appropriateness of such commissions in comparison to federal civilian trials.  New York, the site of the vast majority of the destruction and the prime location for potential trials, has been at the center of this debate.  While there have been many obstacles to the use of military commissions, including U.S. Supreme Court rulings, current President Barack Obama has, despite his initial plan, allowed the commissions to function as a lawful means of administering justice within the American criminal justice system.[6] The Obama administration has yet to issue a final decision on where to try the “high-value detainees,” including the previously mentioned September 11, 2001 masterminds.[7] While some would like to see the detainees tried in New York, others oppose that venue due to the possibility of more terrorist attacks as a result of what would be high-profile proceedings.[8] The opponents are also concerned that the stricter civilian evidence standards could result in more acquittals and more lenient sentences.[9] This article will examine the results of accused terrorists tried in military commissions with those tried in federal civilian courts in an attempt to discern which process is the more effective means for administering justice.

Continue reading “Are Two Judicial Systems Better Than One?: A Look at the Debate Between Military Tribunal Commissions v. Federal Civilian Trials in Terrorism Cases”

Discrimination in the Air: The Thirty Year Legacy of Williams v. Trans World Airlines

Ali Chaudhry, Staff Writer

On August 12, 2006, thirty-year-old Raed Jarrar, an Iraqi who immigrated to the United States three years ago, was attempting to travel on JetBlue Flight 101 from New York’s John F. Kennedy International Airport to Oakland, California, when he was approached by two TSA officers.[1]  The officers told him he’d have to cover his T-shirt, which read in English and Arabic, “We Will Not be Silent.”  When Jarrar asked why, one of the TSA officers said, “Coming into an airport while wearing a t-shirt with Arabic letters on it was equivalent to going into a bank while wearing a shirt saying, ‘I am a robber.'”  Jarrar initially refused to cover up the shirt, first asking to speak to a supervisor, and then asking if there was a law prohibiting Arabic shirts.[2]  He finally relented when it became obvious he couldn’t get on the plane without complying.  The officials purchased a t-shirt for him to wear, changed his seats without consulting him, and forced him to sit in the back where flight attendants kept an eye on him.[3]  As ridiculous as this incident may sound, Jarrar’s story is not a unique one.  In today’s America, Muslim citizens are expected to leave their constitutional rights at the gates of the airport, and this trend has received active support from the courts.

In the most publicized case to date, an Arab-American secret service agent working for President Bush was denied a seat onboard an American Airlines flight.[4] Although the parties dispute exactly what happened, race or racial stereotyping played at least a part in the airline employees’ refusal to allow the agent to re-board the plane even after his identity had been confirmed.[5] In San Francisco, Ahsan Baig, a Pakistani businessman, was denied entry to United Flight 288 because the pilot became suspicious of the way he appeared to be talking to other passengers.[6]  Another incident in New Jersey involved a New York Family Court judge, Tejinder Singh Kahlon, a Sikh who refused to remove his turban in public for airport officials.[7]  In probably the most shocking case, a young Pakistani American woman was strip searched by Illinois National Guard troops at Chicago’s O’Hare Airport because she was wearing a traditional head covering.[8]

After the terrorist attacks on September 11, 2001, the landscape of civil rights in America changed forever.  The attacks impacted air travel more than any other aspect of American society.[9] After all, September 11 revealed aviation security to be a national defense function,[10] and a “beleaguered” aviation industry was quick to ask for federal assistance in drafting and enforcing of security mandates.[11]  Since the tragic events of that day, courts have been faced with litigation as a result of the terrorists’ attacks, allegations of air carrier racial discrimination, and actions involving unruly passengers.[12]  A troubling aspect of post-9/11 litigation in the aviation industry has been the claims involving of racial profiling and discrimination,[13] as well as denial of service to passengers who may be viewed as a security threat simply because of the color of their skin, perceived ethnicity, religion, or race.  Even more troubling is the trend that courts are increasingly giving deference to airline crews and pilots in ejecting passengers based on any suspicion, and such passengers have no legal remedy even after their innocence is proven.

As public carriers, “[a]n air carrier . . . may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex or ancestry.”[14]  Although an air carrier cannot discriminate, the airline captain is granted wide discretion in denying boarding to any passenger,[15] and the captain’s decision will be upheld unless it is deemed arbitrary or capricious.[16]  The standard that the “pilot in command of an aircraft is directly responsible for, and is the final authority as to the operation of that aircraft”[17] is engrained in the theory that safety is paramount, and that any suspicions with respect to a passenger’s conduct is best resolved on the ground — not in the air.[18] In most cases, while passengers claim race-based discrimination as the primary reason for their ejection from the plane, the airline crews regularly insist that safety was the dominant factor in their decisions.[19]  Even so, does the law then allow for racially discriminatory behavior to be allowed in the name of safety? Continue reading “Discrimination in the Air: The Thirty Year Legacy of Williams v. Trans World Airlines”

The Foreign Intelligence Surveillance Act Amendment of 2008: The Battle Between Counterterrorism and the Constitution

Marisa Floriani, Staff Writer

In a New York Times article on December 16, 2005, the world became aware of former President Bush’s decision to wiretap Americans via the National Security Agency (“NSA”) in order to obtain terrorist intelligence.1  Although the NSA had predominantly monitored activity abroad, former President Bush had the NSA screen intelligence within the United States borders without a court order for the first time in its history.2  The New York Times article alerted its readers, “The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices . . . .”3  Why the change?  Former President Bush felt that this was “necessary” in order to accomplish an ultimate goal of counterterrorism.4  Although today’s society is constantly worried about the threat of terrorism, which is not likely to dissipate in the near future, Bush’s decision was criticized because it was inconsistent with the rights our forefathers articulated in the Constitution. 

The Watergate scandal is arguably the initial impetus leading to the enactment of the government’s practice of wiretapping.5  Once the committee reviewing the Watergate scandal had reviewed the country’s history regarding wiretapping, it was clear that there needed to be legislation that did not infringe upon Americans’ rights; the Foreign Intelligence Surveillance Act (“FISA”) sought to balance the need of protecting civil liberties with the need for ensuring national security by allowing the government to wiretap foreign powers abroad to obtain foreign intelligence.6  Continue reading “The Foreign Intelligence Surveillance Act Amendment of 2008: The Battle Between Counterterrorism and the Constitution”