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After Guantanamo

After Guantanamo, Back to America's Ideals

Those who say that America's existing courts can't handle terrorism prosecutions are wrong.

By Anthony D. Romero

In his inaugural speech, President Obama pledged to reject the "false choice between our safety and our ideals." Now that he's taken the historic step of ordering the closure of the Guantánamo Bay prison, that pledge will be tested as President Obama decides how to handle the detainees imprisoned there. It's clear that only an unqualified return to America's established system of justice for detaining and prosecuting suspects can restore America's values and the rule of law.

Those who say that America's existing courts can't handle terrorism prosecutions are wrong. The U.S. justice system has a long history of successfully handling complex national security cases - protecting classified information without compromising fundamental rights. In fact, several convicted terrorists have been prosecuted and imprisoned through the justice system, including Omar Abdel Rahman, convicted in the first World Trade Center attacks. Creating another ad-hoc illegal detention regime that in any way allows the president to suspend due process and hold suspected terrorists without charge or trial is unconstitutional and would face unending legal challenges, just as Guantánamo and its military commissions have. We cannot create a new system that simply moves Guantánamo on-shore.

Under one of President Obama's executive orders, the Justice Department will conduct a thorough review of all the Guantánamo detainees' records to determine whether there is legitimate evidence of criminal activity. If such evidence does exist, detainees should be prosecuted in federal courts where the Constitution still applies. And if it doesn't, detainees should be returned to their home countries for trial or released. If there is a risk of torture or abuse in their home countries, detainees should be transferred to countries that will accept them.

Federal prosecutors have a vast array of tools at their disposal, including laws that criminalize conspiring or attempting to commit homicide, and harboring or concealing terrorists. If the government cannot meet that minimal burden of proof, it is hard to see why it should continue to detain a suspect.

Yes, some statements obtained from detainees through torture would not be admissible in a legitimate court of law. But the fact that the American justice system forbids imprisonment on the basis of evidence tortured out of prisoners is a strength, not a weakness. Furthermore, one would hope that if a prisoner were as dangerous as the government has claimed, prosecutors would be able to gather enough admissible evidence to prove its case from untainted sources.

The Obama administration must stand firm to its ideals; half-steps and incomplete measures won't do. Establishing a whole new detention regime to accommodate the Bush administration's abhorrent torture policies would be a legal and moral disaster. It's time to return to the principles upon which this nation was founded.


Anthony D. Romero is Executive Director of the American Civil Liberties Union.

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Comments (1)

PelegrinMountjoy Author Profile Page:

Mr. Romero wrote: "Furthermore, one would hope that if a prisoner were as dangerous as the government has claimed, prosecutors would be able to gather enough admissible evidence to prove its case from untainted sources."

I, for one, am not inclined to trust my security, and that of my family & my country, to Mr. Romero's baseless hopes.

In the real world, there are dangerous al Qaeda terrorists who, and for a variety of perfectly legitimate reasons, it may not be possible to proscute in U.S. Artice III courts. The United States has every right -- and indeed the U.S. Government owes a constitutional duty to its citizens -- to detain these combatants who are at war with us (if you don't believe they are at war with us, just ask them; they're happy to tell you they are) until the end of the war to prevent them returning to the fight. Charge or release is a dangerous and naive position, and a a matter of law is completely unnecessary.

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