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On the value of civilian courts for trying terror suspects

Federal Court House in Manhattan

Federal Court House in Manhattan

In case you missed it, the New York Times had an excellent editorial on the value of using civilian, Article III, courts for trying terror suspects. They write:

Supporters of the tribunals at Guantánamo Bay, Cuba, who insist military justice, not the federal courts, is the best way to deal with terrorists, should pay close attention to Tuesday’s events in a United States District Court in Manhattan. Faisal Shahzad was sentenced to life imprisonment, five months and four days after he tried to blow up his car in Times Square.

When Mr. Shahzad was arrested, and later given a Miranda warning, the “tough on terrorists” crowd screamed about coddling and endangering the country’s security. They didn’t stop complaining, even after Mr. Shahzad cooperated with investigators and entered a guilty plea with a mandatory life sentence. All of this happened without the Federal Bureau of Investigation and the New York Police Department breaking laws or violating Constitutional protections.

Now let’s check in on Guantánamo Bay, where President George W. Bush opened an illegal detention camp, authorized torture and abuse, and then set up military tribunals engineered to produce guilty verdicts no matter how thin or tainted the evidence. When the courts declared the system illegal, Congress made it slightly better. President Obama improved it a bit more. But it is still not up to American standards, or to its task.

There are more than 170 inmates left in Guantánamo. Only 36 have been referred for prosecution, some very dangerous men. Forty-eight are in a long-term detention that is certainly illegal. Almost all the rest are in limbo while the Obama team tries to figure out what to do. The chances are dimming every day that prisoners like Khalid Shaikh Mohammed, mastermind of the 9/11 attacks, will ever be brought to justice.

The only inmate on trial in Guantánamo is Omar Khadr, a Canadian who was accused at age 15 of killing an American soldier in Afghanistan. He has been held in extralegal detention for more than eight years, and the military has been attempting to try him since 2005. The thin evidence against him is tainted by his credible allegations of abuse.

The Pentagon has further shamed American justice during the trial by imposing censorship that included temporarily banning four reporters from the courtroom because they published the name of a witness who had been identified in news reports and public documents.

This is the choice: Justice in long-established federal courts that Americans can be proud of and the rest of the world can respect. Or illegal detentions and unending, legally dubious military tribunals. It is an easy one.

The editorial writers of the Times make much sense.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.