JURIST Special Guest Columnist Lt. Col. Stephen Abraham (US Army, ret.), formerly assigned to the Office for the Administrative Review of the Detention of Enemy Combatants and the first officer to publicly criticize the Combatant Status Review Tribunals at Guantanamo, says the US Senate has acted appropriately in rejecting an appropriations amendment offered by Senator Lindsey Graham that would have effectively stopped domestic trials for Guantanamo detainees by prohibiting the Justice Department from using federal funds to prosecute them in federal courts…

Yesterday, the Senate, while considering the Commerce, Justice, Science, and Related Agencies Appropriations Act for Fiscal Year 2010, voted to reject an amendment by Senator Lindsey Graham (R-SC) that would prohibit the Justice Department from using federal funds to prosecute any alleged planners or conspirators in the September 11, 2001 attacks in the federal courts. Senators should be congratulated on taking the right course and recognizing that the federal courts are the right forum for trying these individuals.

What’s most troubling about this effort from Senator Graham is that it elevates an act of terrorism, which is innately a criminal act, to an act of war. We should not be so quick to do so, giving traction to the perpetrator's claim of legitimacy. These individuals are nothing more than suspected criminals and we need to treat them as such. If convicted, they should be put in the same prisons in which we place others who have committed offenses against our people and our laws.

Furthermore, resorting to military commissions – the alternative Senator Graham appears to support – is not appropriate. Although recently amended, the military commissions have not been meaningfully reformed. This is certainly the case if the government is not prepared to see its process, results, and actions tested at every instance by an independent judiciary. The military commissions do not uphold the principles of liberty that our Constitution serves – not as a source but as a testament. As Justice Jackson (serving as chief prosecutor during the Nuremburg trials) said, “the world yields no respect to courts that are merely organized to convict.”

This is all part of a larger debate concerning how to close the Guantanamo Bay detention facility properly. This led me to join over 125 Americans, including former members of Congress, diplomats, judges and prosecutors, retired military and government officials, foreign and national security experts, and bar leaders in putting forth Beyond Guantanamo: A Bipartisan Declaration. The Declaration advocates for the use of federal courts to try suspected terrorists and an end to the policy of indefinite detention without charge. Our chorus of voices could not have come at a more crucial moment.

The amendment proposed by Senator Graham demonstrates that the very nature of the balance of power that guards against unwarranted, capricious, and arbitrary abrogation of fundamental human rights, including liberty, may be decided in the context of transient executive priorities and in an environment of fear. This argument unfortunately assumes that the rights we hold dear are anything but inalienable. It is an argument that cannot be allowed to succeed.

Stephen Abraham, Lieutenant Colonel (Ret.), was the first officer to publicly criticize the Combatant Status Review Tribunals at Guantanamo, filing an affidavit before the Supreme Court in Boumediene v. Bush. He served with the Office for the Administrative Review of the Detention of Enemy Combatants in 2004 and 2005 and was in the United States Army Reserve as a military intelligence officer for more than 22 years. The Declaration, Beyond Guantanamo, was coordinated by the Constitution Project and Human Rights First. To learn more, go to: www.constitutionproject.org
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