Punishing Crimes of Terror in Article III Courts

Abstract

As the government’s strategy for advancing the “War on Terror” has evolved, preventative prosecutions of terrorism suspects in the Article III courts have played an increasingly important role. In this way, the civilian courts have been enlisted as participants in the government’s war strategy in the conflict with al Qaeda. Problematically, though, there has been little attention to how this interbranch war strategy could be more effective and better coordinated. In particular, there has been relatively little conversation about the civilian courts’ approach to sentencing and punishing defendants convicted of terrorism crimes perpetrated in connection with the War on Terror. For whatever reason, movement toward reform has been stagnant — the United States Sentencing Guidelines have been largely accepted as providing adequate guidance to the courts in their sentencing practices. This article demonstrates why the Guidelines fall short and suggests how they can improve. The article takes as its frame of reference the Executive’s war strategy and war aims in this conflict, which include preventative prosecution. In view of that strategy and its related objectives, it considers how the current Guidelines framework for international terrorism is insufficient. In so doing, the article identifies the appropriate legal principles, sentencing purposes, and historical experiences that are relevant to the United States’ conflict with al Qaeda but not adequately accounted for in the current Guidelines regime. The article proposes a way to revise the Guidelines to incorporate these principles, purposes, and lessons from history in a way that will better serve the United States’ overarching war effort. Importantly, the article proposes a sentencing and punishment framework that draws from both domestic and international law and context — consistent with the global nature of this conflict — thereby enhancing the transparency of the civilian courts’ sentencing and punishment practices and improving the coherency of this component of United States counterterrorism policy.