By Gabor Rona, International Legal Director
In the last few days we've seen several knee jerk "I told you so" reactions to the recent decision of a federal judge to exclude torture-based evidence from terrorism suspect Ahmed Khalfan Ghailani's trial. You'd be forgiven for thinking that the "told you so" is "this is what happens when you torture people to get evidence." Instead, some, such as Liz Cheney, former Attorney General Michael Mukasey, former federal prosecutor Andy McCarthy, and former Department of Justice official Jack Goldsmith have come to the misguided conclusion that "this is what happens when you put suspected terrorists on trial rather than simply detain them without charge or trial."
Here's the proof that their view is flawed: approximately 400 terrorism cases have been successfully handled by our regular federal courts since the 9/11 attacks. True, these 400 cases have not involved Guantanamo detainees. This one case does involve a former Guantanamo detainee, allegedly held in secret CIA detention where he was mistreated in interrogation. Still, it would be premature to conclude that the criminal case is doomed or that former Guantanamo detainees must be detained without trial. There is, for example, much evidence of criminal conduct of the so-called 9/11 mastermind, Khalid Sheik Mohammed, that is not derived from water board-induced confessions or other forms of abuse.
Here's another reason their view is wrong: it projects into the future the problems of our past. The Bush Administration left a legacy of arbitrary detention, torture and failures to gather proper evidence from the dark post-9/11 days when it was banking on no rules, no law, and no courts. That has all changed. In addition, the extraterritorial reach of US criminal law concerning terrorism is also, now, well established. Our intelligence, law enforcement and even military personnel are becoming increasingly cognizant of the need to gather admissible evidence to support criminal charges and trials. The FBI has clearly stated that application of Miranda warnings, a cause célèbre for those critical of using civilian justice, is not an issue. Once we're done swallowing the consequences of the Bush administration's atrocious judgments and conduct that compromised, rather than protected national security, we should have very few, if any, cases in which persons must be detained but cannot be tried.
Detention without charge or trial is recognized and legitimate under narrow conditions applicable in armed conflict. But expanding our concept of war to cover the entire planet, without any reasonable expectation of how to define victory against an amorphous enemy in order to justify application of exceptional detention powers is exactly the wrong thing to do. We cannot solve the problems created by an administration that trashed our historic commitment to due process of law by now further trashing our historic commitment to due process of law. Detention without charge or trial is not only a 'solution' that merely compounds a problem, it's one that undermines the values by which we define our society - values which, not coincidentally, enhance our security in a world where our departures from the rule of law play right into the hands of those who seek to harm us.