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Prosecuting Terror Suspects in Federal Court: The Right Choice
JURIST Guest Columnist Virginia Sloan
, president and founder of the bipartisan Washington DC-based Constitution Project
, says that US Attorney General Eric Holder should stand by his decision to try Guantanamo Bay detainees in traditional federal court, rather than in military commissions....
ast month, the Constitution Project, working with Human Rights First, brought more than a dozen signatories to Beyond Guantanamo: A Bipartisan Declaration
to our nation’s capital to meet with members of Congress and their staffers to advocate for the trial of terrorism suspects in traditional federal court, rather than military commissions. Signatories also cautioned against using a system of indefinite detention to hold suspects without charge or trial. These efforts were particularly timely given recent debate on these issues and pending legislation that could force the administration to pursue prosecutions of terrorism suspects only in military commissions.
For far too long, the national debate around how and where to try suspected terrorists now held at Guantanamo has been incorrectly framed as a partisan dispute. It is simply wrong to believe that the national security debate has to pit Democrats against Republicans, and conservatives against progressives. Beyond Guantanamo is an example of policy experts from across the political spectrum who have come together to support federal court prosecutions for suspected terrorists and to oppose any policy of indefinite detention without charge.
The range of voices that Beyond Guantanamo represents is vast, with former members of Congress, diplomats, federal judges and prosecutors, high-level military and government officials, as well as national security and foreign policy experts, bar leaders, and family members of 9/11 victims having joined the Declaration. At the conclusion of the day’s events, we asked a few of our participants to summarize their thoughts about the full day of meetings and activities.
From Stephen Abraham, retired Lieutenant Colonel in the U.S. Army Intelligence Corps (Reserves):
The choice of trying terrorists in Article III courts or by military commissions is a false choice. This is not a choice between tested and untested forums. Rather, it is a choice between a system of justice that has endured as a light unto the nations for more than 200 years and a process created in haste, borne out of fear. Terrorists seek to weaken our faith in our nation and ultimately ourselves. Affirming our institutions, our laws, and our values is our greatest weapon. Each time we try a terrorist according to our laws, we have won a battle in the struggle against terrorism.
From Bruce Einhorn, former federal judge and former Special Prosecutor and Chief of Litigation at the U.S. Department of Justice’s Office of Special Investigations:
I came three thousand miles to urge our elected officials on Capitol Hill to end the unproductive and so far unconstitutional use of military commissions to try alleged terrorists at Guantanamo or wherever such suspects are found or held. For almost nine years, our government has attempted to employ military commissions without success. In case after case, the U.S. Supreme Court has found the Executive Branch rules and congressional legislation that authorized these commissions to be constitutionally defective. During that period, only three trials of alleged terrorist were actually held before military commissions. In contrast, during that same period, hundreds of such trials have been successfully completed by the federal district courts, and 97% of those prosecutions have resulted in guilty verdicts.
The district courts have a long history of presiding over alleged terrorist cases in a fair and efficient manner, with no violence or security glitches' interfering in the proceedings. Moreover, U.S. Justice Department prosecutors have extensive experience in prosecuting complex cases of terrorism, sabotage, violations of the laws of war, and criminal conspiracy. By contrast, most military prosecutors, while intelligent and industrious, lack the background to handle the unusually challenging and complicated issues associated with the prosecution of alleged Al Qaeda operatives and their terrorist allies.
It is time to stop offending our Constitution and stop wasting taxpayer money on a military commission system that has not worked. I again urge our senators and congresspersons to utilize the finest and most respected civilian court system in the world, which has functioned with minimal revisions and maximum fairness since its inception in 1789.
From Don Guter, retired Rear Admiral in the U.S. Navy:
These guys are not warriors. They are thugs and they deserve to be treated like any other common criminal, not as legitimate soldiers. Our federal civilian courts have a proven track record of delivering the swift and sure justice that Americans expect and deserve. Attorney General Holder made clear that federal courts are [the] best venue to prosecute these cases and the administration should not waiver in its determination to do so.
From Donna Marsh O’Connor, member of September 11th Families for Peaceful Tomorrows:
September 11th Families for Peaceful Tomorrow is proud to partner with the Constitution Project as it works on the Beyond Guantanamo campaign. Knowing that we are surrounded by thoughtful and knowledgeable Americans (distinguished constitutional attorneys, military figures, and leaders of our nation from both sides of the political aisle) makes those of us who lost loved ones and continue to trust in the American rule of law feel supported, validated and energized. In our common goals we believe we will prevail. We support the closure of Guantanamo Bay, the end of indefinite detention and torture and we will work to dignify through its use the United States Constitution and the good citizens of the United States.
From Richard Rossman, former U.S. Attorney for the Eastern District of Michigan and former Chief of Staff for the Criminal Division at the U.S. Department of Justice:
Our American values are based upon equal justice, not making up new rules whenever we are afraid. For over 200 hundred years, our Constitution and our form of justice have served our country quite well. We have, however, strayed from these concepts since 9/11.
We need to get back to our basics. Except for the battlefield combatant captured in a war zone, those persons who commit wrongs against the citizens of the United States should be brought to justice in our federal criminal courts. Guantanamo should be closed immediately and not just moved to Illinois. Those persons who are detained in Guantanamo and anywhere else the military is holding alleged terrorists should be charged with wrongdoing in Article III Courts or released. Until this happens, we will not truly be a nation of ‘Equal Justice Under Law.’
As recent headlines demonstrate, it is far from clear whether Attorney General Holder's decision last November to try five of the 9/11 suspects in federal courts will be overturned. Last month, however, the Constitution Project was proud to enable so many individuals with so much authority and expertise to make their voices heard in support of the Attorney General's original decision. We hope Congress and the White House will listen.Virginia Sloan is the president and founder of the Constitution Project
|April 02, 2010|
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Let's ignore the situation as it stands now. Let's assume that enemies who have declared war on the U.S. can ignore the Geneva Conventions (only the 3rd and 4th apply here) and are automatically protected by the Constitution. Let's look at the implications of that assumption.
In the future, in any conventional war, uniformed combatants, abiding by the Geneva Conventions, will have to be tried in U.S. courts under the protection of the Constitution. And there will be no legal charges against them.
It is not against U.S. law for a uniformed member of a foreign military to combat a uniformed member of the U.S. military. And if it was? What would be the result? We would have to sentence them to a specific time which may exceed the duration of the war, which would then violate the Geneva Conventions. Or a time that may be less than the conflict when we would be forced to let them free to return to battle our troops. Not to mention making illegal an act committed on foreign soil would violate every other Treaty the U.S. signed. In either case our military would not be assigned the protections ensured by the Conventions.
So, in the hypothetical future conventional war we would have 3 choices: we would take no POWs, since we could not make that act illegal and we would expose our military to trial be local laws which could be neither as fair or as enlightened (we could not take POWs, but our enemy could); we would have a standard that benefits enemies that ignore the Geneva Conventions over those that follow them; or, we would be forced to violate the Geneva Conventions ourselves.
Historically, the international community has acted to close loopholes in the Geneva Conventions when one has been found. That's why there are 4 of them. Now you, and the international community, are forcing the U.S. into an untenable position.
By insisting that local laws apply to these cases, you are actually violating the Geneva Conventions. That can not have a good result for the U.S. in the future.