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.

Prosecuting for Torture

President Obama yesterday answered the question many in Washington have been wondering about since he took office: Will there be prosecutions for torture done during the Bush administration? Obama says no, which is a relief to the ranks of the CIA but a frustration to human rights advocates who hoped to see abusive interrogators and their superiors in court. In releasing new Justice Department memos, the Obama administration effectively crafted a compromise for those on both sides of the argument that allows a fulsome disclosure of the abuses authorized by the Bush White House without the pain of trials. It’s almost as if the White House has appointed itself to be a quiet version of the truth and reconciliation commission many have called for. Which is fine, except that approach leaves one major question unanswered in the U.S. torture saga: How do you prevent it from happening again?

What techniques the CIA used were already widely known before the release of the latest memos. Now we know that there will be no prosecutions of interrogators and presumably none for the senior officials who authorized the abuses. The harshest punishment anyone senior in the Bush administration is likely to face for involvement in torture is a post facto reprimand by Justice Department’s ethics office. And that will stand as a sign for future administrations beyond Obama’s stay in the White House who find themselves considering torture or some other clearly illegal activity that seems justifiable amid whatever crisis they happen to be facing down the road.

The best argument for prosecutions I have read appeared in Harpers’s magazine in December. Attorney Scott Horton essentially makes the case that prosecutions of those involved in torture during the Bush administration should go forward, because that is the best way to check temptation for such activity by future administrations. It’s an article worth reading and considering as many in Washington appear eager to shut the door on the torture issue and move on.