« Previous Post | Next Post »

After Guantanamo

After Guantanamo, Trust the Justice System We Have

We don't need a new National Security Court to prosecute terrorists, because our existing system has been effectively prosecuting them for years.

By Joseph Margulies

On his second day in office, President Obama made good on his campaign pledge and ordered the prison at Guantánamo shut within a year. He also ordered the Attorney General to oversee a review of the facts in each case with an eye to deciding the fate of the remaining 245 prisoners.

The lion's share will be released, as they should be. For years, senior counter-terrorism officials with the military and CIA told the Bush Administration that the great majority of the prisoners were either innocent or insignificant, with no connection to al-Qaeda or terrorism. Many have already been cleared for release by the Bush Administration or a federal court, and it is now a matter of getting them off the base.

Most people in this first category--perhaps 150 or more--will be returned to their home countries. The remainder cannot go home because they would be tortured or killed; they must be resettled elsewhere. A number of countries say they will accept some prisoners, and the administration reports that negotiations are underway.

In diplomacy as in life, more success requires less hypocrisy. We cannot get other countries to accept prisoners unless we do the same. The best candidates are the Chinese Uighurs, a small group of anti-communist activists. All agree they are not enemy combatants; in fact, they are ardently pro-democracy with a large and supportive community in the United States.

But that's the trouble. Their opposition to the communists in China means they cannot go home. Yet no other country will take them for fear of antagonizing the Chinese. They should be brought here immediately and allowed to settle with their countrymen; within weeks they would integrate into the community and be forgotten.

The second category--numbering perhaps two or three dozen--includes those who have allegedly committed a crime, among them the 9/11 planners. Ordinarily when people commit a crime against the United States we prosecute them in federal court. But here is where things get interesting.

Some people maintain the courts are no match for at least a few of these prisoners. We are told they are too dangerous to be released, but too hard to convict. For this so-called third category, we should create an entirely new court--a National Security Court--that would sand down the Constitution just enough to fit the perceived demands of the day.

Proposals like this should be quickly but firmly set aside. Long on hyperbole and short on specifics, they take as their starting point a deep mistrust of American institutions. Fundamentally, they perceive terrorism as though it arrived in a spaceship on September 11. The legal system was not created with this monster in mind, and is therefore no match for the peril we now confront.

But this ignores the experience and flexibility of the law. Our criminal justice system has successfully prosecuted terrorists for many years. A recent study by former federal prosecutors examined these cases in detail and concluded what can scarcely be denied: the system works.

More than a hundred Islamist terrorists, including members of al Qaeda, have been tried, convicted, and sentenced to lengthy terms. Presiding over these cases, federal judges have crafted procedures that protect national security as well as the federal Constitution, on the sensible presumption that both are worth preserving.

Perhaps this explains why advocates of a National Security Court have yet to identify a single person who occupies this third category. They conjure images and hypothesize profiles of such a madman, but no such person exists. Khalid Sheikh Mohammed, for instance, was already under indictment on September 11, having been charged by federal prosecutors with unrelated terrorism offenses. Some prisoners at Guantánamo may be criminals, but none are beyond the law.

Undeterred, proponents of a special court insist the record of prior success misses the mark. The problem, they say, is not what the prisoners have done to us, but what we have done to them. Here we approach the nub of the matter. Prosecution in a regular court risks disclosure of the ingenious methods we have used to extract information. Because we have not used these methods before, the prior cases count for naught.

This argument is a makeweight. For one thing, it overlooks the successful prosecution of Jose Padilla. After years in a South Carolina brig, Padilla was finally tried, convicted, and sentenced in a Miami federal court. His treatment in South Carolina included interrogation techniques and conditions of confinement that have no place in civilized society. But Padilla's prior detention as an enemy combatant did not prevent his subsequent prosecution as a criminal defendant.

But even without the Padilla prosecution, we could safely set this objection aside. The whispered suggestion is that our treatment of these prisoners has been so shocking that a federal court will toss out the evidence. The fear which grips supporters of a National Security Court is that a prosecution will end badly. To prevent this, they would concoct a system that will ensure a favorable result.

The moral bankruptcy of a system deliberately designed to convict hardly requires comment. In addition, however, it amounts to the contention that, having broken the law in the way we gathered this evidence, we now must break the law again in order to use it. But if the builders who came before you left a crumbling and corrupt foundation, you cannot fix it by designing a new-fangled house that requires no support.

In any case, federal prosecutors have an astonishingly wide range of charges that may be brought against suspected terrorists. Nothing new here--remember, Al Capone was prosecuted for tax evasion. This allows prosecutors to insulate cases from tainted evidence--a practice they have used for years, just as they did against Padilla.

This leaves an ever-diminishing class of supposedly problematic prisoners. Shifting gears yet again, some suggest the problem is not with the 9/11 planners, whose crime is obvious, but with the members of al-Qaeda who have not yet participated in such an act. They are dangerous but their destructiveness is only potential. Should they be released?

But the criminal law does not require waiting for the bomb to explode before making an arrest, and anticipatory prosecutions, as they are known, have become the bread and butter of federal anti-terrorism efforts. Again, the supporters of a National Security Court have yet to identify a single prisoner who could not be brought to justice under this doctrine.

Still, let us grant that such a person exists. Let us grant that, either because of what he believed when he was captured, or what he came to believe during his many years in custody, he wishes America harm. He has committed no crime and joined no terrorist group, but anger wells within him. There is no evidence of this person at Guantánamo, but let us imagine him. What now?

I would have thought we answered this question during the Cold War. To lock a man up for the blackness in his heart and the evil in his mind is appalling. But to believe that doing so will shrink the universe of people who harbor such views is madness.

In the end, a National Security Court is a solution in search of a problem. Yet if that were its only drawback, it would cause only limited damage. But there is a more insidious danger that has largely escaped comment. The premise of the proposed tribunal is that existing legal institutions are inadequate. Its creation would thus confirm the ugly intimation that some people are outside the law, and that society must become lawless to preserve its commitment to the Rule of Law.

And for whom? The lesson of history leaves little doubt. No one has ever suggested we need a special court to prosecute the Christian militia or domestic eco-terrorists. In practice, the National Security Court will be seen as a special tribunal contrived to convict Muslims. We came to expect this from the prior administration, which mocked the law as an unworthy adversary, but we hope for better from the present.

President Obama did not win because he promised more of the same. He promised change. And fundamentally, the promise was a change in values. The criminal trial is America's finest, most enduring contribution to the Rule of Law. We betray our core principles when we needlessly cast it aside.

The writer is an attorney with the Roderick MacArthur Justice Center and a law professor at Northwestern University School of Law in Chicago. He is the author of Guantanamo and the Abuse of Presidential Power (2006) and is working on a new book on terror, Islam, and the currents of American thought. He is also counsel for Abu Zubaydah, a prisoner at Guantánamo.

Email This Post | Del.icio.us | Digg | Facebook

Please e-mail PostGlobal if you'd like to receive an email notification when PostGlobal sends out a new question.

Comments (1)

PelegrinMountjoy Author Profile Page:

Mr. Margulies deftly ignores the myriad documented difficulties with prosecuting national security cases in our Artice III courts. Both Andrew McCarthy (who prosecuted the culprits of the first World Trade Center bombing) and Judge Mukasey have eloquently detailed the difficulties & dangers from such prosecutions.

He points to the "successful" prosecution of Jose Padilla, but fails to mention that the Government had to drop the most serious allegations of involvement in an effort to explode a "dirty" bomb in the United States, and instead prosecute on other, unrelated charges. Thank goodness they had alternate charges available.

We are at war with al Qaeda. For centuries, countries have used the law of war to deal with those who illegally wage war and/or wage war by illegal means. It remains an appropriate and necessary tool in the fight to defeat al Qaeda and defend our national security.

PostGlobal is an interactive conversation on global issues moderated by Newsweek International Editor Fareed Zakaria and David Ignatius of The Washington Post. It is produced jointly by Newsweek and washingtonpost.com, as is On Faith, a conversation on religion. Please send us your comments, questions and suggestions.