September 30, 2010

Trying Terrorists

By Elise Cooper

Recently, the Obama Administration has put all terrorist detainee trials on hold. Are they choosing to follow the Bush Administration and hold the Guantanamo detainees as enemy combatants? A former CIA official felt this is the most appropriate way to handle the detainees because unlike "the FBI who wants to build a criminal case, the CIA wants to grab everything in a target room, exploit the computers, pocket litter, cell phones, and anything else we can find for intelligence, and put the terrorists out of business. We don't care about any criminal case." Since some evidence may be declared inadmissible, the fruit of the poisonous tree doctrine becomes significant in both a federal trial and a military commission. This leads to the argument that the detainees should be held as enemy combatants.

Al Qaeda declared war on the US by issuing a Fatwa and attacking military targets (the USS Cole) and America's homeland on 9/11. An act of war was effectively declared through Congress' authorization of funds, troops sent to fight on two fronts, Iraq and Afghanistan, and both President Bush and President Obama's statements that their job is to protect the national security of the United States. Congressman Tom Rooney (R-FL), a former JAG prosecutor, clearly noted that "we are fighting a global war on terror, even though it is not a traditional war and it may not have a defined end. Acts of terror which are attempts to attack our entire country and our way of life by killing multitudes and instilling a sense of crippling fear are synonymous with acts of war." Therefore, the detainees should be held, as enemy combatants, until the conflict is over. Just because the detainees did not wear a uniform, did not fight for a particular country, or carry a particular flag does not mean that the detainee should get any specific privilege or exemption from the rules of war.

Even though it ran counter to how previous American wars were conducted, the Supreme Court held that habeas corpus should be exercised to review the status of the enemy combatants. The Combatant Status Review Tribunal (CSRT) was established for this purpose. Kyndra Rotunda, a professor of law, author of Honor Bound: Inside the Guantanamo Trials, and a former JAG prosecutor, felt that detainees are getting more procedural protections than what captured American soldiers receive and that "CSRTS procedures provide greater due process protections than what is required by the Geneva Convention. CSRTS afford more procedural protections than has ever been extended to enemy combatants. Detainees are assigned a personal representative to assist them in the CSRT hearing."

There are those that would argue that some of the Guantanamo detainees are innocent and that mistakes happened. There is never, whether on the battlefield, or in a court of law, 100% certitude or perfection. In a federal court of law, people are sometimes falsely accused, have their reputations ruined and have to spend money on a defense attorney, such as in the Duke Lacrosse Scandal and security guard Richard Jewell in the Atlanta Centennial Olympic bombing. The same is true for wartime situations where people get held and killed, and property is destroyed. Because human error will never be eliminated national security has to be the most important priority. The recidivism rate, which is now approximately 20%, shows that errors can be made where the guilty get released. Rooney concurs that "some of the enemy combatants who have been released have re-joined the fight. That's unacceptable. It is better to be safe than sorry."

In fact, President Obama's Guantanamo Review Task Force found that at least 95% of the detainees have some noteworthy ties to Al Qaeda or the Taliban in the files they reviewed. According to Andrew McCarthy, the prosecutor of the terrorists for the 1993 World Trade Center bombing and author of The Grand Jihad, if the terrorists at Guantanamo were truly innocent, President Obama, now in office for two years, would have had them released because of his desire to close Gitmo. The administration is not doing it "because the executive branch has the intelligence evidence. They know they will be blamed if they released them and the terrorists went back and attempted to commit mass murder."

America should absolutely hold the detainees as enemy combatants. No enemy combatant in any war in the history of the US has ever have been granted judicial rights, that is until 2004. McCarthy's solution is for Congress to create a national security court that would allow the terrorists to be tried in a military commission; yet, held as enemy combatants since they are not mutually exclusive. The protection of the American people and military must be first and foremost.