International Legal Director
There are two distinct camps criticizing the use of federal courts to try terrorism suspects after last week's federal court conviction of former Guantanamo detainee Ahmed Ghailani. Both are wrong.
One camp includes several members of Congress, such as Rep. John Boehner, and says that the outcome shows that military commissions are far superior to federal courts despite the facts: (1) that Ghailani was convicted in federal court and faces 20 years to life; (2) that military commissions would not likely have admitted the torture-based evidence excluded by the federal court; (3) that military commissions' powers are limited to war crimes and cannot likely try people for conduct, like Ghailani's involvement in the 1998 embassy bombing, that pre-dates the US' war against al Qaeda, or for "conspiracy," a crime that three US Supreme Court justices have said is not a true war crime; and (4) the entire host of other problems that equate "military commissions" with "dysfunctional, disreputable and dispensable."
The other, more knowledgeable (or more honest) camp recognizes the flaws of the military commission system, but calls for indefinite detention without trial of any sort. This is the more pernicious argument, representing a much graver threat to liberty as we know it, as well as to national security. Among this group is Jack Goldsmith, former head of the Office of Legal Counsel in the Justice Department. He called the Ghailani verdict "disappointing," but doesn't say why. He poses the political nightmare scenario in which a terrorism suspect is found not guilty.
True, that would be a tough situation for the administration. But it's what we used to call justice. And the administration could diffuse the prospects of that unpleasantness by doing a better job of using such an unlikely eventuality as a teachable moment, underscoring that prisoner abuse is an ineffective intelligence gathering strategy that also undermines our ability to obtain justice.
Also true that the law of armed conflict permits detention without criminal charge. But even though the US is in a war in Afghanistan and Iraq, that does not justify, let alone make wise, detaining any and all terrorism suspects without trial. Ghailani, whose crime occurred 3 years before 9/11, and the war that followed it, is a case in point.
Whether the alternative to tried and true federal trials is the mess that is military commissions, or the mess that is detention of criminal suspects without charge or trial, the effect is to cement, rather than reverse, a growing global sentiment that the United States is retreating from the rule of law. It's a recruitment tool for our enemies and an impediment to US advocacy for human rights in other countries. But don't take my word for it. At this week's NATO Summit in Lisbon, Gen. Petreus (here and here) said the same. It is critical for us to live our values, he said, not only because Americans have fought for generations to protect them, but also because failure to do so will "bite you in the backside." Whether you're John Boehner or Jack Goldsmith, it is well to recall that lack of faith in the bedrock principles and institutions of American justice threatens our liberties and our security so much more than any terrorist can.
Human Rights First has conducted research, published in two major reports entitled Pursuit of Justice (here and here) on the experience of federal courts in hundreds of terrorism cases. These reports have received widespread acclaim for their detail, accuracy and successful refutation of criticisms that leveled at the use of federal courts.