How will alleged perpetrators of terrorism be prosecuted, in federal court or by military tribunals?
How will alleged perpetrators of terrorism be prosecuted, in federal court or by military tribunals?

The prospect of trying the alleged mastermind of the September 11 attacks in US federal court, and the criminal charges filed in Detroit against Christmas Day bomber Umar Farouk Abdulmutallab have triggered a debate in the United States.  It focuses on the core question: Is terrorism a criminal act or an act of war?

Khalid Sheikh Mohammed, the self-proclaimed mastermind of the September 11 attacks, is to be tried in civil court, if President Obama gets his way.  And there will likely be a civil trial for the Nigerian, Umar Farouk Abdulmutallab,  accused of trying to bring down a US airliner on Christmas Day. These events have sparked a debate on whether terrorist acts against the U.S. should be treated as acts of war or criminal acts.

The choice is linked to how alleged perpetrators are prosecuted, in federal court or by military tribunals. Although President Obama wants to try some in US civil court, he says al-Qaida is waging war against the West.   He spoke about this at a townhall meeting on YouTube (February 1). 

"We are at war against a very specific group - al-Qaida and its extremist allies that have metastasized around the globe, that would attack us, attack our allies, attack bases, and embassies around the world, and most sadly attack innocent people regardless of their backgrounds and regardless of their religions," Mr. Obama said.

On Capitol Hill, opposition to trying alleged terrorists in federal court - where defendants have extensive rights - is growing.

"Yes, it is a war, a war of terror these radicals have declared on America and the West," Republican Senator Christopher Bond said.  

Michael Swetnam at the Potomac Institute for Policy Studies says treating terrorist acts as crimes should not stop the government from using war powers. For example, he says there's a case to be made for eventually moving AbdulMutallab to military court.  "Are these things criminal acts, of course they are criminal acts. Are they acts of war? Almost certainly also acts of war," he explained. "We should not let the consideration that it is a criminal act prevent us from using our war powers when necessary and vice versa."

Charles Allen, undersecretary for Homeland Security, says the distinctions are fluid.  "It takes a full range of instruments, diplomacy, law enforcement, intelligence and the military. I think we have to go full force in those directions," Allen stated.

But the top EU diplomat in the US, Angelos Pangratis, says terrorism does not fit the legal definition of war. "Counterterrorism, of course, is the first priority in terms of building the security of the future of our citizens. But this fight has to take place by the (international) law and within the law," Pangratis said.

Swetnam says international laws - like provisions that do not support trying terrorists as enemy combatants - are old and should be amended. "We are at war with al-Qaida and other radical groups and the international law, in its slow plodding way, may catch up in another decade or a century or two, but that will not stop people from dying and us from fighting them," he said.

President Obama says the battle against al-Qaida is also a war of ideas. He says the US must do more to work with Muslims who overwhelmingly reject violence.