As a rule, courts are not good at adjudicating terrorism cases. The law doesn’t care why someone might be drawn to political violence, and because the law doesn’t care, most judges don’t bother to familiarize themselves with the tangled history that lies behind many modern grievances. In cases that demand nuance, courtroom actors often rely on popular myths about fundamentalism and its adherents. Importantly, this is every bit as true for defendants who ally themselves with ISIS as for those who pledge allegiance to the Proud Boys. In a very real sense, terrorism cases break the law.
People who pay attention to these things know this to be true, and sometimes judges are candid enough to admit it. In 2011, for instance, the D.C. Circuit affirmed a district court order denying the writ of habeas corpus to a detainee at Guantanamo. In concurrence, Judge Lawrence Silberman predicted that neither he nor any of his colleagues would ever vote to release someone from Guantanamo if it was even “somewhat likely” the prisoner belonged to or supported al Qaeda. Judge Silberman thought it was one thing to order the release of a culpable prisoner “in a typical criminal case,” but something altogether different in a terrorism case. “[O]ne cannot help but be conscious of the infinitely greater downside risk to our country, and its people, of an order releasing a detainee who is likely to return to terrorism” (emphasis supplied).
Infinitely? Really?
But let’s be honest. Despite what Judge Silberman thinks (or thought – he died in 2022) about the “typical criminal case,” a lot of cases break the law. Judges don’t understand violence, for example, and do a lousy job in gang cases. Courts are not good at adjudicating any case that calls upon actors to lift their gaze from the individual to the systemic. At least in this country, the criminal courts have never understood or acknowledged the distorting effects of poverty and trauma, of race and class, of politics and history. Nearly everything that might place an act in its complex context is very deliberately left outside the courtroom; no court has ever instructed a jury that it may take a man’s poverty into account when deciding whether he knocked a woman over the head and stole her purse. Evelyn Waugh was surely right – to understand everything is to forgive everything – but the criminal law has always been more interested in getting it done than getting it right.
And so, the value of Nicole Nguyen’s new book, Terrorism on Trial: Political Violence and Abolitionist Futures (University of MN 2023) is not that it alerts us to what we already suspected would be true, but that it tries to bring terrorism prosecutions within the abolitionist universe. This is ambitious indeed. As she asks,
Do abolitionist demands … equally include Thomas Osadzinski, who was ensnared in a sting operation; Khalid Sheikh Mohammed, who served as the principal architect of the September 11 attacks; Aws Al-Jayab, who traveled to Syria to depose the Assad regime; and U.S. Major Nadal Hassan, who fatally shot thirteen people in his Fort Hood military base attack? (329)
To me, the answer to Nguyen’s question is clearly yes. But I am an abolitionist who has represented post-9/11 detainees since the first prisoners deplaned in Cuba more than 20 years ago. I was lead counsel in Rasul v. Bush (2004), which established the right of Guantanamo detainees to challenge their detention in federal court, and in Munaf v. Geren (2008), which established federal jurisdiction over citizens held by the United States overseas. And I was one of the lawyers in United States v. Abu Zubaydah (2022), brought on behalf of my client, who was the first prisoner cast into and tortured within a CIA black site. In my work, there has never been a tension between abolition and terrorism.
Yet, as long as we are being provocative, we might ask whether abolitionist demands also include Enrique Tarrio, the former leader of the Proud Boys who is serving 22 years in prison for masterminding the conspiracy to overturn the result of the 2020 election, or Stewart Rhodes, the leader of the Oath Keepers whose conduct at the U.S. Capitol January 6, 2021, earned him a sentence of 18 years for seditious conspiracy, and who, according to the sentencing judge, represents an “an ongoing threat and a peril to this country, to the republic and to the very fabric of our democracy.”
The point of this is not to challenge abolitionists to grapple with hard cases; they have been successfully doing that for decades. Instead, it is to suggest that at least some terrorism cases do not map easily onto the abolitionist landscape. Abolitionist theory makes central the needs and lived experience of the victim. It asks, holistically, what victims need in order to be seen, heard, and safe. In many cases of interpersonal violence, this question can yield productive dialogue and genuine accountability, rather than one-size-fits-all punishment imposed by the State.
But when defendants attack the integrity of the democratic process based proximately on a set of grievances that are demonstrably untrue – Donald Trump did not win the 2020 election – it is not immediately clear who the victim is. With whom should Rhodes and Tarrio be in dialogue, and how could that be arranged except by the State? In this peculiar setting, what does accountability mean?
I do not ask these questions to suggest that abolition fails in this context, but to encourage us to build upon Nguyen’s work. She has taken the first step, making plain that the criminal courts are as incapable of delivering justice in terrorism cases as they are in any other. It is up to all of us to bring these cases into the abolitionist future.
