JURIST Guest Columnists Lawrence Friedman and Victor Hansen of New England School of Law say that while there are risks associated with trying Guantanamo detainees suspected of terrorism in civilian courts in the United States, those risks can and should be managed in the interest of justice….

Even before President Obama announced that Khalid Shaikh Mohammed and four other terrorist suspects currently being detained at Guantanamo would be prosecuted in federal court in New York City, the administration suffered fierce criticism for proposing that these prosecutions should be conducted in Article III courts—civilian courts—in the United States.

In an op-ed he recently wrote for the National Law Journal, Senator Mitch McConnell (R-Ky) outlined several reasons why, in his view, we should not consider trying terrorist suspects on our soil. He argued that such trials might result in the disclosure of sensitive information and that there will be logistical issues with securing the courthouse. He also voiced concern over, in his words, “the additional legal rights terrorists will receive if they are brought here.”

None of these reasons for declining to try terrorist suspects in Article III courts withstands close scrutiny.

First, as we have argued elsewhere, the notion that a civilian trial means that sensitive information will be at risk of disclosure is chimerical. Federal judges have many tools available to them that can be used to ensure that no sensitive information is disclosed during the course of these prosecutions beyond what is necessary for the lawyers to do their jobs. The judges of the federal district court in Washington D.C., have proved themselves quite capable of protecting sensitive information in habeas proceedings brought by terrorist detainees. It is not clear why their counterparts in New York could not do the same.

Second, the logistical aspects of securing courtrooms and protecting all individuals who may be involved in these trials do not present insurmountable problems. There already exists a high level of security in all federal courthouses. We can enhance that security knowing these courthouses might become even more attractive targets. We can close streets, deny access to unaffiliated personnel, cordon off air traffic, and so on. Though burdensome, none of these steps are impossible, and—equally importantly—none necessarily entails closing the proceedings to members of the press, who in a very real sense will be representing all of us as witnesses to the administration of justice in respect to these defendants.

Third, there is the fear that these terrorist suspects will receive additional legal protections. This is a curious argument. Its validity depends upon acceptance of the premise that, as a matter of course, they should receive fewer legal protections. That premise is faulty: it suggests that because of their legal status these individuals are different from ordinary criminal defendants. Apart from what they have been charged with, however, they are not. The premise assumes guilt when in fact that is what the government must prove.

Further, if the prosecution of these defendants in civilian court presents evidentiary problems because proof of their crimes was obtained through torture and other coercive techniques, then the question of guilt necessarily becomes more complicated. To put it bluntly, these detainees were deemed enemy combatants. They have not been proved in any judicial proceeding to be terrorists. However much we believe in our good hearts and with good reason that they are terrorists, the whole point of our criminal justice system is to provide an opportunity for an objective determination of that fact. That determination is what makes the verdict lawful and just.

Senator McConnell also maintains that there is the risk that if the government cannot prove its case—because, for example, the evidence has been tainted—these defendants will be released into the United States. This is a remote possibility. This term the U.S. Supreme Court is reviewing a case, Kiyemba v. Obama, in which the district court, later overturned by the D.C. Circuit Court of Appeals, ordered the release of a group of Uighers from Guantanamo into the United States. Even if the Supreme Court overturns the Appeals Court and affirms the authority of district court judges to effect this kind of release, Congress has the authority to enact rules to regulate that power. Indeed, Congress likely has the authority to create a system of civil confinement for individuals who cannot be repatriated or released into the United States. It may be that, despite President Obama’s wishes, the nation will not soon be abandoning the confinement of individuals at Guantanamo.

We are not suggesting that there is no risk associated with trying Guantanamo detainees in civilian courts. We are simply saying that those risks can be managed. And, more importantly, those risks should be managed. To determine the guilt or innocence of these individuals in civilian courts makes a powerful statement about just how seriously the United States takes the Rule of Law. These trials may be another testament to why, at the end of the day, the terrorists will never win.

Lawrence Friedman teaches constitutional law and state constitutional law and Victor Hansen teaches criminal law and criminal procedure at New England School of Law. Their book, The Case for Congress: Separation of Powers and the War on Terror, was recently published by Ashgate.
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