Military Commissions: A Second-Class System of Justice

Feb 22, 2010

In November, Attorney General Eric Holder announced that the trials of Guantánamo detainees accused of planning the attacks of September 11, 2001 would be held in federal criminal court in New York. Senator Lindsey Graham (SC) and others are pressuring the Obama administration to reverse this decision. Senator Graham would prefer that the United States prosecute detainees using military commissions, which are unconstitutional and fundamentally flawed.

At FCNL, we believe that military commissions are a second-class system of justice. Trials in federal criminal court - and not by military commission - are the best way to ensure that the United States carries out justice in compliance with human rights principles and the rule of law.

Federal Courts Regularly Try International Terrorism Suspects

Federal criminal courts have successfully carried out nearly 200 terrorism cases since the attacks of September 11, 2001. Military commissions do not have nearly as much experience. They have only convicted three low-level individuals since 2001 and two have already been released.

Some say that trials in federal court would pose a risk to national security or would result in escape or acquittal. In reality, those convicted of terrorist acts in the past - including Richard Reid, the shoe bomber, Zacarias Moussaoui, a 9/11 conspirator, and Timothy McVeigh, the Oklahoma City bomber - have not posed a security risk and continue to be held safely in federal prisons.

Military Commissions Do Not Meet Standards for Fairness

Federal criminal courts not only have a proven track record; they also have clear statutes and procedures that allow for fair and effective prosecution of terrorism cases. Military commissions fall far short of the requirements imposed by the Constitution and Geneva Conventions.

Each detainee currently held at the prison at Guantánamo Bay has the right to a fair trial. However, military commissions do not offer adequate due process protections, such as the right to a speedy and public trial and prohibition against ex post facto crimes. Federal criminal courts are well-equipped to handle these trials in a way that promotes fairness and transparency.

Federal Trials Will Uphold Justice and Restore the Rule of Law

If Senator Graham's amendment passes, the Obama administration may be unable to prosecute detainees in federal court. In that case, the closing of the notorious prison at Guantánamo Bay will be further delayed. It is wrong from both a moral and political standpoint to hold Guantánamo detainees indefinitely without charge. The Guantánamo prison stands as a symbol for U.S.-sponsored torture and functions as an effective recruiting tool for terrorist organizations.

The United States should move quickly to restore the rule of law and renew this country's commitment to human rights. The U.S. government should reject the flawed military commissions and instead support fair trials of Guantánamo detainees in federal courts.
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