At Guantanamo Bay, there are now roughly half of the 700something detainees that once served time in the facility. Most have been released, with many of those that remain being termed the ‘worst of the worst’ – hardened terrorists who would allegedly, if let go, help to organize or participate in acts of terrorism. The central debate now raging in policy circles is what is to be done with the remaining few.
Needless to say, the Bush administration has pushed for an approach that relies on the existing military commissions. But such a strategy has numerous problems. Evidence obtained by coercion is considered permissible, and questionable hearsay rules mean that suspects can be tried, and executed, on extremely shaky grounds. Internationally, military commissions are widely viewed as “kangaroo courts” and have led to increased outrage at the United States, even spurring on the recruitment efforts of terrorist groups. Moreover, by trying detainees through a system of military commissions, rather than treating them as criminals under the American criminal justice system, the Bush administration has inadvertantly made martyrs out of the terrorist suspects. As Khalid Sheikh Mohammed indicated (in broken English) before the Combatant Status Review Tribunal, the label of “enemy combatant” is coveted because it can equate a terrorist’s inhumanity with a warrior’s dignity: “We consider we and George Washington doing the same thing…So when we say we are enemy combatant, that right. We are.”
The alternative to military commissions – and an answer to the question of how to best handle the remaining detainees – is eloquently outlined by Kenneth Roth, the director of Human Rights Watch, in an article for Foreign Affairs this month. His argument is a strong one, and should be required reading for policymakers. In just eight pages, Roth makes the case that the US court system can (and should) handle the cases of terrorism suspects. This would not be without precedent; most recently, the cases of Jose Padilla, Zacarias Moussaoui, and Richard Reed (the “shoe bomber) have all been conducted under regular criminal proceedings.
The Bush administration has based its opposition to such an approach on several grounds. First, administration officials claim that criminal cases generally deal with crimes that have already been committed – not those, as is frequent with terrorist defendants, that have not yet happened. But there is, according to Roth, a way around this. Under US law, the crime of “conspiracy” can apply to both prior and upcoming crimes and has thus far proven “sufficient to address today’s terrorist threat.” Second, concerns are often raised about the many rules and regulations that govern criminal justice. Should American soldiers actually have to read out the Miranda rights in the midst of a battle? Not exactly. According to Roth, the criminal justice system has found a workable middle ground. “Only criminal investigators or their surrogates, not soldiers in combat, are required to give a Miranda warning, and the courts have allowed a ‘public safety’ exception, when questioning is urgently needed to secure timely intelligence.”
Additionally, it has often been said that intelligence secrets could be revealed under a regular criminal court system. But Roth argues that this challenge
is not insurmountable. It often arises when sensitive investigations involving national security, drug trafficking, or organized crime lead to prosecution. In such circumstances, defense lawyers typically try to force the government to either reveal sensitive secrets or drop the case. To address these situations, Congress enacted the Classified Information Procedures Act (CIPA) in 1980. The law empowers federal judges to review defense counsel’s requests for classified information with the aim of sanitizing that information as much as possible or restricting its disclosure to only those defense lawyers with security clearance. The purpose of the act is to protect a defendant’s right to confront all the evidence against him or her while safeguarding legitimate intelligence secrets…Judges who have tried cases under CIPA speak of it as a reasonable compromise between fairness and security. CIPA rules have not forced the government to abandon even one of the dozens of international terrorism cases it has prosecuted since 9/11.
When considering how to deal with the remaining Guantanamo detainees, Kenneth Roth draws the right conclusions. America’s criminal courts have dealt with terrorist cases effectively before and, as the old saying goes, “If it ain’t broken, don’t fix it.” It seems clear that it’s better to work through our existing criminal justice system (while making any necessary tweaks to ensure its feasability), than to continue to rely on the legally-controversial and morally-dubious system of military commissions.