Movement In The Right Direction In Terrorism Cases: The
Guantanamo System
13 January 2010By Jacob G. Hornberger
We libertarians just might be winning the battle over
whether terrorism cases belong exclusively in federal
court, as compared to a dual system in which the feds
can, at their option, prosecute suspected terrorists
in the Pentagon’s “judicial” system at Guantanamo Bay.
Keep in mind that the debate is not whether the
constitutional system should be discontinued in
terrorism cases. Since 9/11 the feds have used the
constitutional system to indict and prosecute many
people accused of terrorism, and they continue to do
so. Instead, the debate is whether U.S. officials
should be able to use an alternative system — that is,
the Pentagon system — as an optional alternative to
the federal court system.
Long-time supporters of FFF know that ever since the
inception of the Guantanamo system, we have
steadfastly opposed this dual judicial system, arguing
that under our system of government, like it or not,
people accused of federal crimes must and should be
prosecuted in U.S. District Court. The Pentagon’s
alternative judicial system, we have argued, is
nothing more than an end-around of the Bill of Rights
and the Constitution, ironically by people who take an
express oath to support and defend these documents.
Moreover, we have long argued that this dual, optional
system for prosecuting suspected terrorists violates
the rule of law and the principle of equal treatment
under law.
As a reflection that things might be moving in the
right direction, consider this excellent article
published yesterday in the Detroit Free Press by two
former U.S. Attorneys, who argue that the federal
courts are the only proper venue for terrorism cases
and who reject calls to turn the alleged would-be
Detroit airline bomber over to the military. They
write:
“As former U.S. Attorneys for the Eastern and Western
Districts of Michigan, we are confident in the ability
of the federal justice system to handle the trial of
Abdulmutallab and any other terrorism suspect. During
our time at the U.S. Department of Justice, we never
felt the need to stray from our traditional justice
system to prosecute those responsible for heinous
crimes. There is no need to start now.”
“Using indefinite detention and military commissions
constitutes a troubling departure from our
constitutional principles. As U.S. Attorneys, we took
an oath to support and defend the Constitution and to
protect the core values of our society. Critics of
using our federal justice system to try terrorism
suspects propose to simply cast aside our values in
exchange for the appearance, but not the reality, of
safety.”
Moreover, consider the following “Beyond Guantanamo: A
Bipartisan Declaration (pdf),” which is signed by
dozens of prominent people, many of whom are former
federal officials, and many of whom are lawyers, which
declares in part:
“Prosecutions for terrorism offenses can and should be
handled by traditional federal courts, which operate
under statutes and procedures that provide the tools
necessary to try such complex cases. Moreover, the War
Crimes Act explicitly gives federal courts
jurisdiction to try certain war crimes.”
“We believe it is unconstitutional to detain
indefinitely terrorism suspects in the United States
without charge, either for the purposes of
interrogation and intelligence-gathering or solely on
the basis of suspected dangerousness. There are
limited times when preventive detention, subject to
required procedural protections, is appropriate in the
context of armed conflict. However, the continued
detention without charge of the detainees remaining in
Guantanamo is not appropriate and is contrary to
American values.”
In the fear-laden climate following the 9/11 attacks,
the Bush-Cheney regime induced many Americans to
surrender the rights and guarantees in the
Constitution and Bill of Rights by supporting an
optional, Constitution-free military “judicial” system
in Cuba. As our Founding Fathers understood so well
and as Americans have now discovered, those who trade
freedom for safety get neither freedom nor safety.
Fortunately, public opinion might now be trending in
the opposite direction — one in which Americans demand
restoration of their rights and freedoms in the Bill
of Rights.
Best of all, of course, would be a movement toward
ending the U.S. government’s wrongful actions
overseas, which stir up so much anger for our country,
which inevitably manifests itself in the form of
terrorist attacks, which U.S. officials then use as an
excuse for suspending our rights and freedoms and for
expanding the ever-growing budgets of those operating
in the military-industrial complex.
Jacob Hornberger is founder and president of The
Future of Freedom Foundation.
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