Terrorist Suspects in Civilian Courts: A Threat to National Security?

If Guantanamo Bay is closed, scores of trained jihadists, committed to killing Americans, will be released to dwell among us: It is that simple.Pres. Barack Obama and Attorney General Eric Holder contend that America's civilian federal prisons are secure. Our "supermaxes" they insist, are up to the task of confining the most lethal terrorists. Even if that were true (and history shows it is not), the argument is the most hollow of strawmen. These terrorists are not going to escape–they are going to walk right out the prison gates. They are going to be freed by a perverse new legal system, an ad hoc creation of progressive federal judges, assisted mightily by an Obama Justice Department rife with lawyers whose former firms and institutions spent the last eight years representing America's enemies.

The civilian criminal-justice system is neither designed for nor capable of handling wartime detention cases. The basic presumptions of the civilian system–innocence, privacy, the preference that the prosecution lose any case in which there is the slightest doubt about guilt–have no bearing on the detention of enemy operatives in wartime. Yet, international terrorists present challenges that traditional enemy combatants do not: They do not wear uniforms, they do not carry their weapons openly, they conduct their operations in secret, and they blend into the general population, intentionally creating ambiguity about whether they are combatants or civilians.

This ambiguity is a military issue, not a legal one. In our system, the conduct of war is a political exercise in which the judiciary has no proper role. Under separation-of-powers principles, a judge has no more business telling a field commander who the enemy is than a general has telling a judge how to rule on the validity of a contract. Unfortunately, our system has become over-lawyered, and our leaders lack the political will to tell judges to butt out–something Congress and the president have the power to do.

Recognizing that reality, a few of us have argued for years that Congress should create a national-security court. Such a tribunal would proceed under the laws of war, meaning that an individual could be detained if, in the rational judgment of the military, he was deemed an enemy operative. The procedures used would essentially mirror military justice, not the civilian system, with a significant caveat: To ensure the integrity of the rulings, and to entice cooperation from allies resistant to traditional military tribunals (which are unilateral executive-branch productions), independent federal judges would preside over detention cases. To guard against the propensity of judges to inflate the due-process rights of prisoners and defendants, Congress would enact four precautions: (a) the judges would have no authority to invent new procedural rights (i.e., detainees would have only whatever rights Congress gave them); (b) the government would have a right of immediate appeal if a judge tried to flout the rules; (c) the government would enjoy a strong presumption in favor of wartime detention (i.e., a detainee's status as an enemy combatant could not be invalidated absent convincing evidence that the military had been irrational in so designating him); and (d) the government would have the right to appeal any decision voiding detention.

Many arguments supported the creation of a national-security court, but the best one was the inevitable consequence of a failure to act. Beginning in 2004, the Supreme Court's liberal bloc signaled its determination to invite the federal courts into national-defense matters. If we lacked the will to tell the courts they had overstepped their constitutional limits, and lacked the foresight to create a tribunal that would circumscribe this meddling, then the judges would simply create their own system. Because judges are products of the American legal culture (as a class, they lean left, often radically), and because they have no political responsibility for national security (they don't answer to the voters), a judicially crafted system was guaranteed to be terrorist-friendly.

Even these dire predictions failed to factor in the Obama administration's radicalism. In the current Justice Department, several top officials, including the attorney general himself, are recused from various national-security cases under conflict-of-interest guidelines. The reason? They, or their former firms, represented enemy combatants in lawsuits against the American people. Indeed, such is the mindset of the Obama DOJ that, to help formulate detention policy, Holder recruited Jennifer Daskal–a Human Rights Watch official with no prosecutorial experience–who had been a tireless advocate for terrorists held by the United States.

Congress failed to create a national-security court, and in 2007 both houses were taken over by Democrats philosophically aligned with the lawyers who would later fill the Obama Justice Department. The results are clear: We are now operating under a shadow detention-review system created by judges. In it, enemy combatants are not merely presumed innocent; the terrorists get advantages that American citizens do not get in the regular justice system.

To see that this is so, one need look no further than the case of Kuwaiti detainee Khaled al Mutairi, methodically dissected by the Foundation for the Defense of Democracies' Tom Joscelyn in an important post at the Weekly Standard's blog.

The intelligence and evidence supporting the military's designation of Mutairi as an enemy combatant were not merely solid, they were overwhelming. The Kuwaiti intelligence service identified him as a "hardcore extremist" affiliated with al-Qaeda before he left for Afghanistan shortly after the September 11 attacks; to get to Afghanistan, he used a known al-Qaeda smuggling route; he contributed money to an al-Qaeda front designated as a terrorist entity by both the United States and the U.N.; after the U.S. invasion, he fled towards Tora Bora at the same time and using the same route as al-Qaeda and Taliban fighters; when al-Qaeda safehouses were raided after his apprehension, his name was found on a roster of "captured Mujahideen" (a mujahid is one who fights in a jihad); and his passport was deposited in a safe-deposit box consistent with the al-Qaeda practice of having operatives turn in their passports (which gives the network more control over them, makes identification difficult if they are captured, and provides al-Qaeda opportunities to forge fraudulent identification documents). In the face of these damning facts, the military's determination that Mutairi is an enemy combatant was invalidated. A federal district judge in Washington, Colleen Kollar-Kotelly, absurdly held that the evidence was insufficient.

We should by now be familiar with Judge Kollar-Kotelly. She is the Clinton appointee who became chief judge of the Foreign Intelligence Surveillance Court (the FISA court) in 2002. She is one of the judges who tried to rebuild the infamous "wall" between criminal investigators and intelligence agents–the disastrous impediment that Congress razed in the 2001 PATRIOT Act because it had contributed so significantly to the failure to detect the 9/11 plot. Though that lawless rebuilding effort was overruled by the FISA Court of Review in 2002, Kollar-Kotelly was reportedly among the sharpest critics of the Bush administration's warrantless-surveillance program targeting international terrorist communications. And in 2005, in the absence of any authority in the habeas corpus statute, she ruled that enemy combatants were entitled to counsel, at taxpayers' expense, to challenge their detention. In sum, she has a record of elevating concerns about due process for America's enemies over the security of Americans.

Even by Kollar-Kotelly's standards, however, the Mutairi ruling is breathtaking. She treated wartime detention of the enemy as if it were a bells-'n'-whistles criminal trial in which the government has the burden of proving a crime beyond a reasonable doubt. She offered no deference to–much less a presumption in favor of–the conclusion of our professional war-fighters about who the enemy is. She gave every bounce of the ball to Mutairi, reasoning that he, not our military, was entitled to the benefit of any doubt.

But it's even worse than that. If Mutairi's detention proceeding had been a regular trial rather than a habeas corpus hearing, the terrorist would have been convicted of being part of the al-Qaeda conspiracy. That is because trials in the regular criminal-justice system take place under rules fashioned by Congress–the judges don't get to make it up as they go along. For one thing, they are jury trials. Under our law, the jury determines the facts of a case and the credibility of witnesses. Judges may not interfere. Thus jurors, ordinary Americans drawn from the community, are a key safeguard against the defendant-friendly proclivities of jurists such as Kollar-Kotelly.

Criminal trials also proceed in accordance with a pair of centuries-old legal principles. First, pieces of evidence are viewed not in isolation but in conjunction; second, jurors do not check their common sense at the door when they enter the courtroom. This is why the vast majority of defendants who go to trial get convicted. Even a not-so-clever defense lawyer can always come up with a reason to degrade this or that aspect of the prosecution's case: Maybe the teller didn't get a good look at the bank robber; the defendant's fingerprint could have been left in the getaway car weeks before the robbery; the robbery money might be in his house because he unknowingly borrowed it from the real robber; and the accomplice may have falsely fingered him in hopes of saving his own skin. But if the prosecution shows an identification by the teller, a fingerprint in the getaway car, possession of the robbery proceeds, and a co-conspirator saying the defendant was in on it, that's not a shaky case. Taken together, those facts spell slam dunk to a rational, objective fact-finder.

But Gitmo terrorists don't have to deal with jurors vetted to ensure their objectivity. They get highly opinionated judges. Those judges first make up the rules, procedures, and presumptions, and then purport to apply this "law" to the facts–in many cases, just as a defense lawyer would do. As Joscelyn demonstrates, Kollar-Kotelly simply ignored some of the facts (like the Kuwaiti intelligence that Mutairi was an al-Qaeda operative) and speciously minimized or explained away others, studiously averting her gaze from the mosaic composed by the proof.

Naturally, the Obama Justice Department went along for the ride. No appeal was pursued, nor would one have expected otherwise. The way Kollar-Kotelly warped the case is precisely the kind of "justice" top Obama lawyers were pushing for over the last eight years. Now they're in charge, and they readily cited Kollar-Kotelly's ruling as justification for transferring Mutairi back to Kuwait, where he'll be free to rejoin the jihad and take up arms against the United States–like so many other former detainees who've been released in the mad dash to empty Gitmo.

Here's the thing: Because we still have Gitmo, at least Mutairi was outside the United States. When the judge voided his combatant status and the Justice Department declined to challenge the ruling, Kollar-Kotelly was in no position to force Mutairi's release inside our country. He either had to go home to Kuwait or bide his time, like the Uighur detainees, until a country willing to take him was found.

Rest assured that this will not happen if the detainees are transferred to U.S. prisons, so that Gitmo can be shuttered. Once they are here, we will have the perfect storm: Federal judges, inherently hostile to detention without trial, running amok with no guidance from Congress, no political accountability, and no jury to check their excesses; combatant-designations judicially voided for scores of trained jihadists no trustworthy country is willing to take in; and a combatant-friendly Justice Department unwilling to challenge the judicial usurpation of the military's war-fighting powers. Inexorably, the judges will order that the detainees be released in the United States. One judge already tried to do that with the Uighurs, even though they were outside the United States and had no legal right to enter.

For the judges, the hard part was wresting from the executive branch the power to decide who is an enemy combatant. With that accomplished, ordering their release will be easy. And once the Obama administration brings the combatants into the United States, it will be done–bank on it.

In January, The New York Times and other news outlets reported that the Obama administration had decided that some forty of the terrorism suspects being held at Guantanamo will be tried in federal court or by reformed military commission. Guidelines promulgated by the Department of Defense and Department of Justice establish a presumption that the terrorism suspects are to be tried in civilian courts. At this writing, the administration is reconsidering this presumption, not least because these trials raise serious concerns about security, both during the trials and thereafter.

As Andrew McCarthy and other commentators have noted, these security concerns are legitimate. But they are not insurmountable. In this essay, we address these concerns. We begin by explaining why Guantanamo can only be regarded as a failure, both legally and operationally. Next, we address the reasons why as many of the detainees as possible ought to be tried in federal court. Finally, we discuss how that goal can be accomplished without putting American lives in jeopardy after verdicts have been reached.

Guantanamo Has Been a Failure

Prior to 9/11 and the Bush administration's decision to treat terrorism under a war paradigm instead of a law enforcement paradigm, there was virtually no question that federal courts were the appropriate forum in which to deal with alleged terrorists. Following 9/11, the Bush administration parted from this approach and initiated the war on terrorism. At some visceral level this paradigm shift felt good to us as a nation; after all, we were all in varying degrees victims of the 9/11 attacks. Fighting the war on terror gave us a sense that something was being done, and soon after American forces put boots on the ground in Afghanistan, we learned that terrorists were being rounded up and that the "worst of the worst" were being shipped to Guantanamo to face military commissions, where they would be made to pay for their terrorist acts. It all sounded so good, it made us feel safer and more secure.

If it were only that simple. As time went on, a very different story began to emerge. Many of those put in Guantanamo were not taken from the battlefield in Afghanistan but from the streets of Europe and Asia, while others were brought in from CIA-run "black sites" where they had been subjected to mental and physical abuse and torture. We also learned that many of those supposedly taken from the battlefield were fingered as terrorists by rival tribesmen and others who were paid taxpayer dollars to settle old scores under the guise of identifying terrorists. We also came to learn that some of those detained at Guantanamo were, by the United States government's own admission, not terrorists at all: They had simply been caught in the terrorist net and could no longer be returned to their home countries.

Information began to trickle out from the FBI's professional interrogators and others who saw what was happening to the detainees being interrogated at Guantanamo, primarily by civilian contractors. These professionals refused to participate in such shameful conduct and they courageously reported their observations to their superiors.

Then there was the promise of trials by military commission. This system of swift justice has now gone through no fewer than five iterations, and with each came the promise that the system was fundamentally fair and that the government was poised to begin immediately trying suspected terrorists. Yet after eight years, the government has managed to try and convict a grand total of three suspects in military commissions. Guantanamo has not brought justice to the detainees suspected of committing terrorist acts, the family members of those killed on 9/11, or the American people.

Further, Guantanamo has become a recruiting tool for jihadists and a hindrance in our efforts to fight terrorism. Long-term allies both in Europe and the Middle East have publicly distanced themselves from the United States because of Guantanamo. More importantly, many of our own military leaders have gone on record that Guantanamo has made it more difficult to prosecute the wars in Iraq and Afghanistan, and General David Petraeus has stated that the closure of Guantanamo will help the military's counterinsurgency efforts in the Middle East.

In light of the legal and operational failure that Guantanamo has become, the real question is not whether we should try suspected terrorists in federal court; rather, the better question is: Why should we continue to stubbornly hold on to the failure that Guantanamo represents?

The Terrorist Suspects Should Be Tried in Federal Court

Those terrorist suspects who can be tried in federal court should be tried in federal court. Those detainees at Guantanamo who are alleged to be true agents of terrorism should be treated as criminals, not warriors. At this point in time, trial in federal court would be no less efficient than trial by military commission. More importantly, to consider the detainees as warriors rather than ordinary criminals is to accord their actions, and those of their leaders, a weight and legitimacy that can only aid the terrorist cause.

Our civilian courts, moreover, are well equipped to oversee the trials of criminals. Indeed, the United States tried the defendants responsible for the first World Trade Center bombing in federal court as criminals in the 1990s (convictions were secured). Further, the government continues to try in federal court all manner of individuals arguably as dangerous as the terrorism suspects currently being detained at Guantanamo–including American citizens alleged to have committed acts of domestic terrorism, as well as individuals accused of involvement with organized crime. Indeed, at this moment more than 300 international and domestic terrorists have been convicted in federal courts and are serving their sentences in federal prisons.

One of the arguments against trying the terrorism suspects in federal court is that the potential for disclosure of classified information and intelligence methods is too great. Because the possibility of such disclosure is unreasonably high, the argument continues, the suspects should be tried by military commissions and the more flexible rules that govern such proceedings.

This argument does not withstand close scrutiny. Judges in our federal courts have multiple tools at their disposal to ensure that classified information is not revealed. Civilian judges, like their military counterparts, are capable of striking the appropriate balance in determining whether the discussion of certain information must be curtailed–and also taking the necessary steps to prevent inadvertent disclosures. Indeed, judges sitting on the federal district court in Washington, D.C, have for several years been entertaining habeas petitions from the detainees and proved themselves capable of protecting classified information while ensuring suspects a fair hearing.

As well, the logistical aspects of securing courtrooms and protecting all individuals who might be involved in these trials do not present insurmountable problems. There already exists a high level of security in federal courthouses, and that can be enhanced still further. Or we can find some other suitable facility in which to conduct these trials–perhaps at a military detention or federal prison facility. Federal court judges, appropriate court personnel, and the attorneys can travel–and we should insist that the United States attorneys in the Southern District of New York be involved in these cases, for no attorneys in the country (including military lawyers) have more experience in prosecuting terrorism suspects.

Congress Must Get Involved

Trials in federal court are one thing; the possibility of releasing even one of these terrorism suspects into the United States following an acquittal is another. Andrew McCarthy raises the possibility of a real risk that, if the government cannot prove its case–because, for example, evidence was tainted–one of these defendants may be released. Not if Congress steps in to give the president the authority to detain individuals in these circumstances, based upon an assessment of the potential danger they pose.

Consider that the government may have evidence that a particular terrorism suspects poses a real danger but not sufficient proof to convince a jury beyond a reasonable doubt. In other circumstances, the U.S. Supreme Court has upheld laws that permit the government to secure the indefinite detention of certain individuals based upon a lower evidentiary standard, so long as procedural protections are in place. Nearly half the states have laws, for example, that allow for the continued confinement of sexual predators who have served their time but whom the state can demonstrate are volitionally impaired and likely to re-offend.

Currently, no similar federal law would permit the president to seek the indefinite detention of a terrorism suspect whom the government can show poses a real danger of engaging in future terrorist activities. Congress should act quickly to correct this deficit and address the circumstances of terrorist defendants who may pose a continuing threat. Indefinite detention proceedings could follow immediately upon a finding of not guilty in a federal trial. The judge will have heard the same evidence presented to the jury, but the government should be permitted to adduce additional evidence relative to future dangerousness that could not be admitted in the criminal case. Such indefinite detention should not be terminated unless an appeals court determines that the designation was an abuse of the trial judge's discretion, or the government determines that the individual no longer poses a threat–perhaps due to the discovery of new information or some factor related to the defendant's age or health.

Conclusion

To be clear: Despite the failure of Guantanamo, we are not suggesting there are no risks associated with trying terrorism suspects in civilian courts. But we are suggesting those risks can be managed, and that they should be managed. However much we may believe in our hearts and with good reason that the detainees at Guantanamo are guilty of various acts of terrorism, the whole point of a trial in a civilian court is to provide an opportunity for an objective determination of the fact of guilt. That determination has a value beyond measure: It is what makes the verdict lawful, fair and reliable; it is, in other words, the best means by which we ensure that justice is done.

To their credit, Professors Hansen and Friedman acknowledge (here) that "security concerns" raised by Andrew McCarthy and others about trying terrorists in federal district courts are "legitimate" and admit there are other "risks" that will need to "be managed" but are not "insurmountable." But they still contend that the Guantanamo Bay detention facility should be closed and the terrorists brought to America to be tried in federal courtrooms. While I agree with some of their judgments–in particular the harm done by past abuse of detainees–I believe their conclusions are flawed, as is much of their reasoning.

One wonders if they somehow missed the events surrounding the 9/11 attacks. They contend that "the Bush administration … initiated the war on terrorism" which is a bit like saying Poland "initiated" World War II when it was attacked by Germany on September 1, 1939. It brings to mind the old schoolboy defense that "he hit me back first!"

America Is at War

America is at "war." An unusual war, to be sure, but war nevertheless. How do we know? Well, the day after the 9/11 attacks, the United Nations Security Council unanimously passed Resolution 1368, declaring the attacks a "threat to international peace and security" and "recognizing the inherent right of individual or collective self-defence"–language of armed conflict rather than law enforcement. That same day, the North Atlantic Council for the first time in its more than fifty-year history invoked Article 5 of the NATO Treaty, recognizing that an "armed attack" had occurred, declaring it to be an attack against all NATO members, and pledging to assist the United States as an "exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations." Again, this is the law of armed conflict.

That same day, President Bush declared: "The deliberate and deadly attacks which were carried out yesterday against our country were more than acts of terror, they were acts of war." President Obama and his senior cabinet members have repeatedly reaffirmed this conclusion.

Article I, Section 8, of the Constitution vests in Congress the decision to declare war, and one week after the attacks, with but a single dissenting vote, Congress enacted Public Law 107-40, invoking the 1973 War Powers Resolution and authorizing the use of military force against al-Qaeda and those states and entities the president concludes assisted in the 9/11 attacks. This was the functional equivalent to a declaration of war.

The Supreme Court in Hamdi v. Rumsfeld (2004) and other cases has repeatedly affirmed that America is engaged in an "armed conflict" that is governed by the "Law of War" (which many of us in the post–U.N. Charter era prefer to call the Law of Armed Conflict [LOAC]). That is the foundation for the holding in Hamdan v. Rumsfeld (2006) that Common Article 3 of the 1949 Geneva Conventions applies in this struggle.

So if Presidents Bush and Obama, an almost unanimous Congress, the Supreme Court, NATO, and the U.N. Security Council got this one right–and we are in fact engaged in a war–then detaining captured enemy combatants at Gitmo and trying them by military commissions is the proper way to go. It is also far more consistent with our own security and the safety of judges, jurors, witnesses, and Americans living in the vicinity of any civilian court that might undertake such a trial.

Ignorance of the Controlling Law

Our biggest problem with respect to detention and prosecution of the enemy in this struggle is ignorance. Untrained in national security law, most of the critics in this country and around the world have incorrectly applied principles of domestic criminal law to a situation properly governed by the Law of War. But the LOAC rules are different.

As the Supreme Court has repeatedly confirmed, the LOAC permits us to detain these terrorists without charges or trial for the duration of hostilities. In the 2004 case of Hamdi v. Rumsfeld, Justice O'Connor wrote for the Court: "We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use."

Few Americans today remember that during World War II more than 400,000 German (and a significant number of Italian) soldiers were held in POW camps spread across more than forty American states without being charged with a crime, taken before a judge, or given access to a lawyer. This is not a novel idea. After centuries of putting enemy soldiers to the sword or selling them as slaves–and following failed experiments with "paroling" POWs (sending them home to tend to their crops or flocks), only to find the enemy prince had promptly returned them to the battlefield–the world community agreed that soldiers captured during armed conflict would essentially be "warehoused" under humane conditions for the duration of the conflict, to be exchanged when peace returned.

Even Rumsfeld Favored General Compliance with the Geneva Conventions

Even former Defense Secretary Donald Rumsfeld, in a once-secret memorandum to the chairman of the Joint Chiefs of Staff dated January 19, 2002, ordered combatant commanders detaining captured al-Qaeda and Taliban personnel to "treat them humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949." That, we have been repeatedly told, is what the critics want. But few critics appear to have ever taken the time to read those conventions.

Article 84 of the 1949 Geneva Convention Relevant to the Treatment of Prisoners of War (often referred to as the Third Convention, or GC3), provides:

A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.

For the record, American laws do not so permit.

Article 97 adds: "Prisoners of war shall not in any case be transferred to penitentiary establishments (prisons, penitentiaries, convict prisons, etc.) to undergo disciplinary punishment therein." They are supposed to be kept in military POW camps. Because neither al-Qaeda nor the Taliban qualify for the full protections of the Third Convention, it is not a violation of international law for us to try captured members of either group in civilian courts or to send them upon conviction to our civilian prisons–but doing so is not in keeping with the spirit of the Geneva Conventions.

Hansen and Friedman do make one point that rings very true with me–indeed, it is a point I myself made while appearing on C-SPAN's Washington Journal to explain the relevant legal principles shortly after President Bush signed his November 13, 2001, executive order authorizing the use of military tribunals. They write, "To consider the detainees as warriors rather than ordinary criminals is to accord their actions, and those of their leaders, a weight and legitimacy that can only aid the terrorist cause." Like pirates and slave-traders, international terrorists are hostis humani generis (common enemies of mankind), and I agree we should not accord them the formal status as "prisoners of war" in this conflict (although we must treat them humanely as required by Common Article 3–the one provision of the 1949 Geneva Conventions the Supreme Court has correctly held applies to them). But the argument that their unprivileged belligerency ought to entitle them to greater protections than the entire world community has agreed are appropriate for lawful combatants in armed conflicts (every nation in the world is a party to the four 1949 Geneva Conventions) makes absolutely no sense. The Fifth Amendment to our Constitution denies even our own soldiers the full protections of the Bill of Rights, yet by bringing these terrorists into the U.S. for trial we may well wind up cloaking them with the full panoply of protections in the Bill of Rights.

As a former Army captain who served twice in Vietnam, I am greatly offended to hear people suggest that military courts are somehow inherently unfair. When our own military personnel violate the laws of war or our own military rules and regulations, we try them exclusively by military courts. When we send them into combat against an armed enemy, we don't ask that, when they encounter a target they reasonably believe to be the enemy, they first return home and persuade a judge or jury of the facts "beyond reasonable doubt." Any country that applied such a rule in armed conflicts would quickly lose its wars and its freedom.

In a domestic criminal setting, we take justifiable pride in William Blackstone's maxim that it is "better that ten guilty persons escape than that one innocent suffer" but letting an enemy soldier go unmolested in wartime because evidence of his status lacks certainty may quickly lead to the loss of American lives. If we can deprive a foreign enemy of his life during wartime without involving the federal judiciary, by what logic may we not capture and detain him when deemed necessary by our elected leaders to protect the security of this nation?

The costs of detention alone provide our government with substantial incentive to avoid prolonged detention of foreigners who are not a threat to us, and the vast majority of those once held at Gitmo have been set free. (In January, the Pentagon disclosed that 20 percent of those freed are known to have returned to the battlefield.) But there remain many who clearly constitute a serious threat to our security and may lawfully be detained for the duration of the conflict. Some can be tried, but in other cases disclosing key evidence might jeopardize critically important intelligence sources and methods.

This problem is not going to go away simply because there is a new sheriff in town. The Obama administration has already announced that it intends to detain at least forty of the current Gitmo inhabitants indefinitely and without charge or trial. Jameel Jaffer, director of the ACLU National Security Project, has said: "If you close Guantanamo but leave individuals detained without charge or trial, you're just making a cosmetic change." The best way to defuse this controversy–after making certain that all abusive treatment of detainees has ceased–is to educate everyone involved about the LOAC.

International law does not require Miranda warnings or the exclusionary rule, nor does it prohibit hearsay evidence. There are a number of international criminal tribunals going on in places like Cambodia, Rwanda, Sierra Leone, and the former Yugoslavia; and none of them exclude hearsay evidence. Detained terrorists should receive no greater rights than our own soldiers would if captured in war by an enemy that observed the LOAC.

Does America really wish to set a precedent that the rights of detainees in armed conflict are to be determined not by international law but by the domestic criminal laws of the detaining power? Would that have been a desirable standard in our conflicts with Nazi Germany, Imperial Japan, North Korea, North Vietnam, or Saddam's Iraq?

Rejecting the War Paradigm Endangers U.S. Troops

I would add that if we are not at war, hundreds of thousands of our sons and daughters are in serious trouble. Since October 7, 2001, American and allied military forces have been rotating in and out of Afghanistan with instructions to close with and destroy individuals believed to be associated with al-Qaeda and the Taliban. If America is engaged in an armed conflict, our military personnel are protected by the well-established "combatant's privilege"–which permits members of the armed forces of sovereign states during armed conflict to kill that state's enemies on sight. No war, no combatant's privilege.

That presumably means that American soldiers who have served in Afghanistan are at minimum at risk of prosecution as members of a mass conspiracy to commit murder and mayhem. If America is not engaged in an armed conflict, then–unless someone can dig up a federal statute authorizing government personnel engaged in law enforcement activities to hunt down and kill suspected criminals without trial or even a prior judicial finding of probable cause–the men and women we have sent into combat in Afghanistan are at serious risk. Fortunately, that is not the case.

Security Issues and SDNY Prosecutors

Hansen and Friedman suggest that, to overcome the obvious security risks associated with civil trials, "we can find some other suitable facility in which to conduct these trials–perhaps at a military detention … facility." Sounds to me like a great argument for holding the trials at Gitmo.

There is even greater irony in their conclusion that "we should insist that the United States attorneys in the Southern District of New York [SDNY] be involved in these cases, for no attorneys in the country (including military lawyers) have more experience in prosecuting terrorism suspects." Did it occur to them that former SDNY Assistant U.S. Attorney Andrew McCarthy–who successfully prosecuted a dozen terrorists following the 1993 World Trade Center attack and was certainly the most experienced terrorism prosecutor in the SDNY or anywhere else in America at the time of the 9/11 attacks–is perhaps the leading opponent of trying terrorists in federal district courtrooms? McCarthy, after all, authored the piece to which they were responding.

Risks of Corrupting America's Criminal Legal System

One of my many fears about departing from the spirit of the Geneva Convention by trying enemy combatants in civilian courts is that it may require us to play fast and loose with the established Federal Rules of Criminal Procedure–and in the process perhaps corrupt our own domestic legal system. It was unseemly for the president and the attorney general of the United States to announce publicly before the start of a criminal trial that "failure is not an option" and the defendants would be convicted. Hansen and Friedman acknowledge that no current federal law "would permit the president to seek the indefinite detention of a terrorism suspect" who poses a serious future threat and suggest that Congress must step in "to give the president the authority to detain individuals in these circumstances, based upon an assessment [presumably by the president or his politically appointed subordinates] of the potential danger they possess."

Modifying our domestic criminal system to deal with this problem is as dangerous to the rights of Americans as it is unnecessary. Soldiers are not trained to give Miranda warnings or maintain the kind of chain-of-custody records required by federal courts for evidence seized on a foreign battlefield to be admissible, and federal courts are already struggling with the issue of setting aside certain established rules to have a chance at convictions. Last August, in the case of Bostan v. Obama, a federal judge in the District of Columbia declared: "This member of the Court will … observe the Federal Rules of Evidence except where national security or undue burden to the government require otherwise." Do we really want our federal judges in criminal trials to get accustomed to setting aside the rules when they cause an "undue burden" to the government?

United States forces are battling terrorists on the ground in Iraq and Afghanistan and elsewhere, as well as covertly with intelligence operations, aided by our allies. At home, we are developing new and more sophisticated security and intelligence-gathering tools to keep citizens safe. In the midst of all these efforts, we confront a choice: How shall we bring to justice those whom we believe to have committed, or planned to commit, terrorist acts against American citizens?

The choice is complicated by a variety of factors. On the one hand, the terrorism suspects detained at Guantanamo could probably be safely tried at that facility by military commission–though nearly a decade after September 11, the military commissions process has yet to be fully engaged. On the other hand, the terrorism suspects could be tried in the civilian criminal justice system. That choice presents some security risks, and we argue that the benefits outweigh the risks as well as the costs.

The Benefits of Civilian Trials

The two primary benefits of civilian trials are interconnected. First, there is the fact that Guantanamo presents an operational failure that, combined with the incidents of detainee abuse and torture, has damaged the reputation of the United States and aided the terrorist cause. As General David Petraeus and other military leaders have noted, closing Guantanamo will help our counterinsurgency efforts.

Second, there is the fact that what these terrorism suspects are alleged to have done is essentially criminal. The actions of terrorists may share the most violent and damaging effects of wartime conduct, but as a practical matter their actions more closely resemble criminal activity–activity that has long and successfully been prosecuted in our civilian criminal justice system by lawyers familiar with such cases and judges skilled in handling them. This is a system of justice that is renowned for its fairness and impartiality, entitling the judgments it produces to a certain respect. That respect has value beyond measure in our fight against terrorism.

The Case for Civilian Courts

But we have said this before. The important point here is that American policymakers have a choice about where terrorism suspects should be tried–whether by military commissions or in federal courts. The choice should not be driven merely by the fact that the laws of war may allow for the prosecution of some crimes by military commission but by which venue would present the better option in light of the nation's goals and values–including keeping the nation safe and preserving its commitment to due process, fairness, and transparency.

Regarding this choice, we'd like to add two arguments in favor of civilian trials. First, the decision to adjudicate terrorism in the criminal justice system would not endanger U.S. troops. The decision to try these terrorist suspects in federal district court in no way affects the status of the U.S. forces fighting in Iraq, Afghanistan, or anywhere else. The question of where we try these suspects is a separate and unrelated issue to the legality of the conflict or the status of our forces. Article 21 of the Uniform Code of Military Justice and the Federal War Crimes Act specifically contemplate that federal courts, military courts-martial, and military commissions enjoy concurrent jurisdiction.

What does endanger U.S. forces is aligning ourselves with a process that has become a recruiting tool for jihadists and a hindrance in our efforts to fight terrorism. The decision of where to try terrorism suspects is a policy decision committed to a chief executive who has various tools available to him. His policy choices should be informed not by fear but by a careful and complete assessment of the forum best suited to bring these perpetrators of terrorist acts to justice. For most of these suspects, federal district court is the best, most effective, and most proven forum to accomplish this important goal.

Second, the decision to adjudicate terrorism suspects in the criminal justice system will not result in corruption of that system. There already exist a number of well-recognized exceptions to the Fourth Amendment's warrant and probable cause requirements that would most certainly apply in the prosecution of terrorists. Likewise, there are a number of recognized exceptions to Miranda requirements and the applicability of the exclusionary rule for Miranda violations that would also apply in terrorist prosecutions. And all this is assuming that these constitutional provisions would even apply to the conduct of U.S. forces overseas–itself quite an assumption given the Supreme Court's prior rulings in cases like United States v. Verdugo-Urquidez (1990). So the claim that trying these suspects in federal court would somehow water down the rights of ordinary citizens is really an argument based not on fact but on fear.

A Dangerous Precedent

What is of greater and of more certain concern is the precedent that is established by a government that pre-determines to limit the rights and protections to be afforded to an individual based upon who they are or what they are alleged to have done. That is a precedent that we can ill afford to set now.