In my last post, I laid out reasons why Guantanamo detainees currently before military commissions should be tried in federal court. Of course, some counter arguments to this position must be addressed.
First, some may contend that federal prosecutors and judges lack the necessary expertise to appropriately handle terrorism cases. This is simply not true. As Jess Bravin’s compelling book on post-9/11 national security litigation, Terror Courts, notes, federal prosecution teams have secured convictions in civilian court against members of al-Qaeda prior to 9/11, and, armed with their familiarity of the subject matter and relevant players, were eager to take on the post-9/11 terrorism cases as well. In other words, terrorists, including members of the al-Qaeda group responsible for 9/11, have been successfully prosecuted by federal attorneys in federal courts under traditional rules.
Second, the federal system is capable of detaining high-profile individuals. Federal prisons have held many dangerous men, including Timothy McVeigh and Dzhokhar Tsarnaev. Suspected 9/11 terrorists, such as Yaser Hamdi and Jose Padilla, already have been held domestically. The seal, as it were, has been broken, without giving rise to any of the speculative, exaggerated harms.
Third, some claim that trying or holding detainees in the United States would give satisfaction or comfort to our enemy. To this it may be answered that Guantanamo itself likely serves a terrorist recruitment function far more powerful and harmful than any amorphous psychological victory in transferring or trying the detainees stateside. To the extent there is discomfort in having these detainees in Manhattan, they could be tried elsewhere.
Moreover, it is not as though domestic detention facilities would be comfortable for the detainees. In fact, American prisons can be quite harsh for many reasons. Recently, the conditions in the California and New Mexico prison systems, for example, have been found to be unconstitutional, even with the generous deference that is given to prison administrators. This reflects the unfortunate state of confinement for inmates in the American penal system.
Fifth, and finally, the failure to bring detainees from Guantanamo to the territorial United States for trial and detention is not a reflection of the merits of such a move, but is a product of a lack of political will to make it happen. Without public support, our leaders do not have the traditional popular predicate to proceed. But, even if this decision is not politically viable, the issue is of such domestic and international importance that our leaders should take decisive action nonetheless. Doing so would be a principled tribute to the rule of law, and a pragmatic response to the varied, compounding costs of the current approach.
At the end of the day, my concern about military commissions at Guantanamo is about process, not result. We, Americans, have a better system — the federal system — available to us that we should use without further delay. Posterity is poised to judge us harshly, yet we can pull ourselves back, at least somewhat, from the dark side of history if we take this better path forward.
Professor “Dawinder” Dave S. Sidhu teaches and writes in the areas of constitutional law and national security law at the University of New Mexico School of Law.