President Obama has been so chastened by his failure to meet the pledge of closing Guantánamo prison within a year that Rahm Emanuel, his chief of staff, is trying to negotiate with Sen. Lindsey Graham (R-S.C.) to gain Republican support for doing so. In exchange, Graham wants Khalid Sheikh Mohammed and other alleged 9/11 attackers tried using a military tribunal instead of a civilian court and also wants unconstitutional legislation allowing the indefinite detainment of terrorism suspects without trial. Closing Gitmo is designed to revive a tarnished U.S. image abroad rather than being a substantive change in policy, and it now apparently may come at the expense of using unconstitutional and discredited means of holding and trying terrorism suspects.
Although closing Guantánamo would be important symbolically, the law-free sanctuary that the Bush administration had achieved there has already been eroded by the Supreme Court’s demand that detainees have some legal rights. And even if the Obama administration closes Gitmo, some of Bush’s unconstitutional policies would continue in prisons around the United States—for example, the use of military tribunals for some detainees and the detention of some former Guantánamo detainees indefinitely without trial. Thus, the world should, and probably will, focus on the U.S. government’s continued violation of detainees’ rights rather than where they are violated—thus negating any positive public relations benefits from closing Gitmo.
But why should suspected diabolical terrorists have rights? Because these are our rights that are being trampled on too. The key word here is “suspected.” No matter how horrendous the crime—and slaughtering innocents for political reasons is about as heinous as it gets—the alleged culprit deserves a fair trial because he or she could actually be not guilty. Governments, including U.S. federal, state, and local governments, routinely make mistakes and jail the wrong people for crimes. According to Anthony Gregory, author of a forthcoming book on legally challenging incarcerations, an academic study of Guantánamo prisoners found that more than half had never committed a hostile act against the United States. And all but a few percent had not been picked up by American authorities, but had been turned over to U.S. forces in Afghanistan by Afghans to claim handsome rewards. In other words, innocent people had been turned in to get cash. Only 8 percent of Gitmo detainees were al-Qaeda members.
And why are military tribunals so bad? Although they have been slightly improved since the Bush administration originally set up its kangaroo military courts, they still lack the procedural safeguards of detainee rights found even in military courts-martial. Even more important, they are unconstitutional. The 6th Amendment in the U.S. Bill of Rights requires a jury trial for all criminal offenses, with no exception for national security cases. Proponents of military tribunals cite their use to try would-be German spies and saboteurs during World War II, but they were no more constitutional then than now. Furthermore, the killing of almost 3,000 people on 9/11 was a shameful crime, and those that allegedly perpetrated it should not be elevated to “warrior” status by trying them in a military tribunal.
Obama is only contemplating abandoning civilian trials for the alleged 9/11 attackers because of political pressure against holding such trials where the attacks occurred—southern New York, eastern Virginia, and western Pennsylvania. It is disheartening that the public in these attacked areas would not leap at the chance to uphold justice and the American legal system in their own communities.
Overseas, people will merely see any use of kangaroo military tribunals for what they are: attempts to shop jurisdictionally to get convictions more easily. Already the Obama administration selected the cases easiest to prove—those against the 9/11 attackers—for pursuit in civilian courts and relegated the more difficult ones to remain in military tribunals. This policy then created the anomaly that the most heinous defendants got the most rights. Of course, throwing the alleged 9/11 attackers’ case back to into military tribunals will correct this anomaly, but at the expense of violating the 6th Amendment. Thus, all defendants in terrorism cases should be tried in civilian courts as potential criminals.
Lastly, the civilian courts—just as they have in other cases with sensitive information, such as espionage and Mafia cases—have an excellent record of obtaining convictions. Civilian trials have resulted in hundreds of successful terrorism prosecutions, whereas the flawed military tribunals have resulted in only a few convictions—and most of those were overturned.
So if a deal is cut with Sen. Graham to close Guantánamo in exchange for tossing the alleged 9/11 attackers’ case back into military tribunals, the Constitution again will have been trampled under foot and the positive symbolism of closing Gitmo will have been offset by the use of kangaroo military commissions, which have been justly reviled around the world.
This article first appeared in The Independent Institute and is republished with permission.