The Presumption of Innocence: Difficulties in Bringing Suspected Terrorists to Trial

By Robin Simcox

New report uncovers why not all terror suspects can be prosecuted

The Presumption of Innocence, by Henry Jackson Society Research Fellow Robin Simcox, looks at the variety of reasons why the state has not always been able to try terror suspects.

The main finding of the report  is that, in an era of mass casualty terrorism, the notion that all such individuals can be tried in court is outdated The report demonstrates how prosecutions are just one aspect of a much broader strategy of stopping terrorism and not always necessary in order to prove the existence of a specific threat.

The report goes on to call on Western governments – particularly those in Europe – to be clearer in explaining exactly why the state is forced to apply a broad series of measures in combating international terrorism.

Partially based on field research undertaken at Guantanamo Bay, the report also argues that:

  • The majority of those detained at Guantanamo Bay will not be tried. Detention during a time of war takes place to prevent a perceived immediate threat; not as a prelude to trial for a criminal offence.
  • The operational counterterrorism tactics of intelligence agencies and law enforcement can diverge significantly. Intelligence agencies’ priority is disruption and prevention, not assembling information that can be used in court.
  • Prosecution of suspected terrorists is not always in the public interest. They risk disclosing classified information in court that hinders ongoing investigations, revealing sensitive sources, or exposing intelligence-gathering methods.
  • As al Qaeda often operates in ungoverned mountainous regions, the U.S. and its allies have limited access to capturing fighters based there. This has led to the increased use of armed drones and targeted killing, a tactic that will continue in the future.

The Presumption of Innocence author, Robin Simcox, said:

“The post-9/11 era has seen some governments take a much more aggressive approach towards terrorism, and use a variety of different tactics to disrupt it. Yet while there is a general recognition at state level that not all terrorist threats can be dealt with in court, these have not been explained well enough to the general public. This must change.”

Click here to view the full report



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