Why Federal Courts Can Handle Gitmo Cases

The advocacy group Human Rights First in May of 2008 issued a detailed report showing that federal courts have a long, successful track record of handling terrorism prosecution, despite arguments otherwise chiefly by Bush administration officials out to defend torture, black sites and Guantanamo Bay. The report examined more than 120 international terrorism cases prosecuted in the judicial system over 15 years. The cases ranged from the famed 1993 World Trade Center bombing to obscure pre-emptive prosecutions of plots uncovered and thwarted.

Existing law and the adaptability of courts allowed successful prosecutions in the vast majority of cases, the study found. The report’s authors concluded that there is no need to create special tribunals or unusual legal measures such as prolonged detention in order to deal with terrorism cases. They are right, and the Obama administration is wrong to be considering both those practices in trying to figure out what to do about the cases in Guantanamo and future ones like them certain to come.

The U.S. court system as it exists today stands as one of the most successful enterprises of the American political experiment. Over the course of U.S. history the court system has faired better, arguably, than the economy, the electoral system and the institutions of the free press on the whole in terms of its effectiveness and durability. It does not need to be reinvented or augmented with special tribunals or measures allowing prolonged detention, which would inevitably invite the kind of Constitutional challenges that have plagued the organizers of the Guantanamo Bay trials. The federal courts already have the flexibility to address even the enormous complexities imposed by terrorism prosecutions that sometimes involve classified evidence and other obstacles.

To be sure, the courts are not perfect. And they certainly do not represent the only way the U.S. needs to confront the likely unending threat of terrorist violence. Military action, diplomacy, development and aid in the regions of the world where terrorism thrives of course must continue. But abandoning or sidelining the legal system should not be part of that approach.

Look, I’m not a lawyer. But through my travels as a journalist I have had the chance to observe up close some of the world’s good and bad governments and legal systems. In my experience, creating special tribunals and locking people away for long periods without trial is the stuff of weak and fearful states in troubled corners of the world. It’s un-American, in other words. Moreover, that approach is not toughness in the face of terrorism. It’s another form of the scared cringe the Bush administration wore in the aftermath of 9/11, a reflection of the mentality that led the U.S. government in those years to jail people illegally and then begin systematic torture of many of them.

Obama took the White House in large measure because the American public had come to reject the political mindset that put the country’s leadership down the path of the “Dark Side,” as former Vice President Dick Cheney famously put it. Obama has an obligation to resist the pressure he is facing now from Cheney and others to take backward steps on the path he charted to move the country past what so many agree today is shameful history.

Closing Gitmo

The Obama administration has clearly made little progress towards its goal of closing the military detention facility in Guantanamo Bay, Cuba. It’s easy to see why. Closing Gitmo poses an extraordinarily complex legal dilemma. At bottom, there are no good options. Anything short of proper criminal trials for Gitmo prisoners treads on the spirit if not the letter of U.S. law. Allowing trials risks seeing known terrorists go free on legal technicalities sure to arise in courtrooms because of the Bush administration’s unthinking approach to detaining suspected terrorists.

I tend to think the best (or least bad) option is to put the roughly 30 hard-core Gitmo inmates on trial in federal courts and either release the rest or hand them over to their home countries. This is not a popular idea I gather by the recent congressional vote on the issue. But it’s the only option I can see that would empty Camp X-Ray while trying for some sense of justice for 9/11 and other acts of terrorism at the same time.