As I have argued ever since 9/11, there was absolutely no reason to let the Pentagon hijack America’s criminal-justice system in the area of terrorism. Terrorism is a federal criminal offense, not an act of war. That’s, in fact, why many, but certainly not all, terrorism cases are still prosecuted in federal district court. The federal-court prosecutions for the federal criminal offense of terrorism include those of Zacharias Moussaoui (one of the 9/11 terrorist conspirators), Jose Padilla, the Detroit terrorism cases, the Dallas terrorism case, and several more. Some of the accused have been convicted and others have been acquitted.
Thus, it is refreshing to read an op-ed published in the New York Times today entitled, “How to Try a Terrorist,” which contends that terrorism cases rightly belong in federal district court, where the terrorist suspect is accorded all the traditional rights and guarantees accorded criminal defendants.
Significantly, the op-ed is written by a current federal district judge, John C. Coughenour.
Coughenour writes:
“In 2001, I presided over the trial of Ahmed Ressam, the confessed Algerian terrorist, for his role in a plot to bomb Los Angeles International Airport. That experience only strengthened my conviction that American courts, guided by the principles of our Constitution, are fully capable of trying suspected terrorists.”
After the 9/11 attacks, the Pentagon announced that it was establishing a prison camp and an alternative “judicial” system for suspected terrorists in Cuba. Why Cuba? The Pentagon didn’t like the idea of federal judges and criminal-defense attorneys meddling with its “war on terrorism.” In the eyes of Pentagon officials — indeed, in the eyes of many federal officials — the Constitution was nothing more than a piece of paper containing “technicalities” designed to let terrorists go free.
Thus, 9/11 produced two systems for handing terrorists, without even the semblance of a constitutional amendment. One was the traditional federal-court system. The other one was the Pentagon/CIA system that was designed to operate outside the territorial jurisdiction of the United States.
The reason I put “judicial” in quotes when I refer to the Pentagon-CIA system is because their system is actually no “judicial” system at all. Instead, the Pentagon-CIA system makes an absolute mockery of the term “judicial.” There are no speedy trials — detainees have languished in the Gitmo prison for years without a trial. At first, detainees were denied attorneys and even now, attorneys’ relationships with their clients are severely restricted. Detainees are prohibited from filing a petition for a writ of habeas corpus, a right that stretches back to ancient England. Detainees have no protection against cruel and unusual punishments, and therefore are subjected to torture and sex abuse, even without even being convicted of anything. Trial by jury is denied, with detainees being subjected to kangaroo military tribunals that hardly ever meet. Due process of law is non-existent. Proceedings are held in secret. There is no right to bail. Hearsay is permitted. Decisions are sometimes based on politics. Detainees are held for years and then released, without explanation. Detainees under CIA control have disappeared, without any explanation as to what happened to them.
As Judge Coughenour puts it,
“Consider the fact that of the 598 people initially detained at Guantánamo Bay in 2002, 267 have been released. It is likely that for a number of the former detainees, there was simply no basis for detention. The American ideal of a just legal system is inconsistent with holding ‘suspects’ for years without trial.”
Moreover, despite America’s long-held commitment to what is called “the rule of law,” this dual-track system now permits the government to choose which track to send people on. Some terrorist suspects are lucky — they get the federal-court track. Others are unlucky — they get the Pentagon/CIA track. Since the government now has the discretionary option of choosing which track on which send a suspected terrorist, it would be difficult to find a more perfect example of a violation of the principle of the rule of law than this.
After 9/11, Americans were stampeded into accepting this fundamental reordering of our federal judicial system, without even the semblance of a constitutional amendment. Today, every American should be embarrassed for the shame, disgrace, and damage that these people have done to our nation.
Thank goodness there are still jurists like Judge Coughenour to remind Americans that they have the finest judicial system in the world, a system that is perfectly capable of handling the federal criminal offense of terrorism without compromising the fundamental values and protections that our ancestors fought for and achieved in the Constitution and the Bill of Rights.