“More than 100 international terrorism cases have been prosecuted in the federal courts.”

Our colleague Deborah Colson weighs in on a New York Times blog on how the administration’s admission of torture might affect closing Guantanamo and the prosecution of detainees. She rejects proposals for the creation of a new “national security court” and reaffirms the capacity of federal criminal courts for handling terrorism cases.

Susan Crawford, who declined to refer Mohammed al-Qahtani’s case for prosecution on grounds of torture, says she did so despite her certainty that Mr. Qahtani is “a muscle hijacker” who “would’ve been on one of those planes had he gained access to the country in 2001.” Yet because his admissions were made as a result of torture, her conclusions are not necessarily based on reliable evidence. That is why she refused to refer his case for prosecution.

Nonetheless, her statements will undoubtedly be held up by a group of scholars who speculate there are dangerous people — in Guantánamo and around the world — who cannot be prosecuted, but pose a risk to our national security and must be detained.

Many of these scholars say they support closing Guantánamo. At the same time, however, they advocate the creation of a new “national security court” — a specialized tribunal that would provide fewer due process protections than those guaranteed in ordinary criminal courts and might also be empowered to detain “dangerous” suspects, potentially indefinitely, without criminal charge.

Proposals for this new system must be rejected. The federal criminal courts are fully capable of handling complex terrorism cases without compromising national security or sacrificing standards of fairness and due process. In almost seven years, only two military commission trials have been conducted. During that same period, more than 100 international terrorism cases have been prosecuted in the federal courts.

Our procedural safeguards and evidentiary standards comprise the bedrock of American justice. A decision to jettison them, even for a small number of suspects, will undermine our system as a whole and perpetuate the damage to America’s reputation for fairness.

Moreover, the disarray that has plagued the military commission system — with abundant litigation and dissent within the military command structure — would be replicated in another separate, and inferior, system.

Just as importantly, a national security court is not smart counterterrorism policy. The Bush administration’s attempt to insulate the detention, interrogation and trial of terrorism suspects at Guantánamo from the Constitution has only impaired cooperation with our allies and fueled terrorism recruitment. Creating a state-side replica of the Guantánamo legal regime would do the same.


Published on January 15, 2009


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