WASHINGTON, April 14 (UPI) -- The experience of the French in prosecuting terror suspects since the 1960s holds important lessons for America's handling of post-Sept. 11 terrorism trials, according to a new paper from a scholar at a respected Washington think tank.
Jeremy Shapiro, associate director of the Center on the United States and France at the liberal-centrist Brookings Institution, said the French experience with terrorism offers an important perspective on the judicial challenges involved and demonstrates why civilian legal institutions are a critical piece of the counter-terrorism puzzle.
"The war on terrorism is different than any other type of war in that it has no discernable endpoint and will have periods of relative calm," Shapiro told United Press International. "Maintaining popular support for continuing the current war methods (of trying terror suspects) is going to be difficult if not impossible over time. What that means is that the legitimacy of institutions is important because they need to operate when the public is less concerned about terrorism."
In his paper, "French Lessons: The Importance of the Judicial System in Fighting Terrorism," Shapiro says that while there is no simple formula for reconciling the long-term need for judicial legitimacy in the war on terrorism with the need for quick action, the short-term view taken by the United States since the Sept. 11 terrorist attacks is inadequate. He points to the lack of success the U.S. government has had over the last 18 months in involving traditional courts in the fight against terrorism as an example.
Significant concerns underlie U.S. discomfort about using courts to deal with national security threats. These include inefficiency of the courts, the judiciary's general unresponsiveness to evolving threats, and inflexible trial rules. However, Shapiro says these concerns must be carefully weighed against criticism that the dual track system embraced by the Bush administration –- which relies on periods of indefinite detention and military tribunals for most suspects -- is inconsistent with American ideals of fairness and justice.
Paul Rosenzweig, a senior legal research fellow at the conservative Heritage Foundation, told UPI that the current challenges faced by the U.S. legal system in dealing with war-time prosecutions and detentions are part of the long history of such problems, which demonstrate the underlying principles of our legal system and its strength. This history includes the troubled Alien Sedition Acts of 1798 and the Sedition and Espionage Acts of 1917, along with specific incidents such as Abraham Lincoln's suspension of habeas corpus during the Civil War, and the federal government's detention of Japanese-Americans in World War II.
"Everything the court system approaches in a war is a struggle in a kind of ad hoc manner, happily so, I think," he said. "What you don't want is to become too accustomed to war."
Although there are only similarities between the French and American legal systems, there are some distinct parallels between the way the French legal system dealt with the problem of terrorism and the American experience since Sept. 11.
In 1963 the French government established a quasi-military court outside the normal French justice system that was not unlike the U.S. military tribunal system. These separate courts were relatively effective in addressing Algerian-led terrorism in 1960s and the Palestinian terror attacks in France in the 1970s. But the system was plagued with problems of illegitimacy, especially when terror attacks slowed. The resulting decline in public support led to the elimination of the special courts in 1981.
Shapiro said that when a spate of bombings -- conducted by terror groups sponsored by Iran and Syria -- began in Paris in the 1980s, the French had lost the institutional knowledge gained in the 1960s and 1970s for dealing with the problem in their court system. After much debate, they established a specialized legal procedure for prosecuting terrorists in 1986.
Prosecutions in France are now lead by a chief investigating magistrate -- a combination judge and prosecutor – who coordinates all French investigations and trials of terror cases in traditional courts, under specific rules for such cases.
Shapiro said that an important lesson from the French is that public support of trials outside the normal civilian process can fade when terror activity decreases. "The French experience shows that ad-hoc anti-terrorist measures which have little basis in societal values and shallow support in public opinion may wither away during the periods of calm," he said.
Jack Riley, director of the public safety and justice program at the RAND Corp., said that the kind of debate Shapiro is calling for is a reasonable one, but that there are also other issues that must be addressed outside the American system of justice. These include the prospect of developing a world court to deal with international terrorism.
"How would those kinds of issues fit into the framework, that is one thing that deserves some additional consideration," said Riley.
Shapiro also said there is a need to both retain expertise in prosecuting these cases and for to tightly integrate intelligence and judicial institutions when fighting terrorism. Although the United States gained expertise in prosecuting terrorists in the 1990s with the Oklahoma City bombing trials and the prosecutions of the architects of the first World Trade Center bombing, these efforts produced little in the way of long term institutional knowledge because the prosecutors lawyers have now gone on to other pursuits.
Rosenzweig warned that it is too early to tell what impact Sept. 11 has had on the judicial process in the United States. Nevertheless, he said the lack of institutional expertise following the terrorism trials in the United States in the 1990s is understandable, given that they were viewed at the time as one-shot events, a view that changed on Sept. 11 2001.
"I think you have to look at Sept. 11 as the beginning of a long-term (building) processes," said Rosenzweig.
Shapiro said it is unlikely that the United States would respond to the lessons of the French experience because the American public remains uninterested in the issue.
"I am not altogether optimistic," he said. "The Bush administration hasn't shown any inclination toward judicial institutions that are specialized for a war against terrorism and also rooted in the basic American concepts of the legitimate justice and civil rights."
Rosenzweig said it is unlikely that the American public would embrace any long-term changes to traditional judicial practices in order to deal with the problem, nor should they.
"I tend to think that Americans won't put up with long-term dissection of its judicial system,' he said. "We should be hesitant about making permanent structural changes."
