Today it was announced by Attorney General Eric Holder that five terror suspects, currently being held by the military at Guantanamo Bay, Cuba, will be transferred to U.S. civilian judicial authority in New York in preparation for a civilian trial. While there have been no shortage of "experts" explaining how this is a good thing for the rule of law, and I am sure they are well intentioned, they fail to explain how a terrorist, captured by the military on a field of battle, can be tried in a civilian court. These are not traditional criminals or criminal cases.
Most legal talking-heads that support this decision cite the success of previous terror cases tried in civilian courts; cases such as Sheikh Omar Abdel Rahman (aka the Blind Sheikh), Ramzi Youssef, and Zacarias Moussaoui, all terrorists and all tried and convicted in federal court. AG Holder touts the expertise of federal prosecutors in these cases, and rightly so. However, those cases, and many other terrorist cases, all had one thing in common, they were pursued in a traditional legal manner by law enforcement officers trained in the standards and expectations of civilian courts and that took great care not to do anything that could render the cases un-winnable in those courts.
There are any number of loopholes these terrorists can pursue in the civilian legal system in order to thwart our efforts in the pursuit of justice. In a standard criminal complaint law enforcement officers are immediately involved, pursuing the suspects and meticulously gathering and documenting evidence. Once they capture the suspect certain rules must be followed, such as reading of Miranda rights, due process, right to speedy trials, right to be free from cruel and unusual punishment, and so forth, most of which the U.S. military is not trained to do; they are trained to find, close with, and kill the enemy. In cases where enemy soldiers are captured, they are tried before Military Tribunals, which have their own legal standards and expectations and have been used throughout our nation's history; they were not simply created by former-President Bush.
Some areas of concern from a legal standpoint include protection against illegal searches and seizures (Fourth Amendment), the right to due process and protection against self-incrimination (Fifth Amendment), and protection against cruel and unusual punishment (Eighth Amendment). Will the fact that some of the defendants (i.e. Khalid Sheikh Mohammed) were "tortured" be used in their defense? If they incriminated themselves during that torture, will that be thrown out? Can they argue that they were not afforded speedy trials because they were held for years at "black sites" or Guantanamo Bay? Additionally, what about the use of classified information or intelligence in the capture or prosecution of these individuals? Will it be allowed in court? What will be the standard as far as how it was obtained or used? Also, what about the assistance of foreign allies, particularly countries with questionable legal practices, such as Pakistan and the Afghan militias that helped overthrow and capture key Taliban and al-Qa`ida operatives?
I am sure AG Holder, his legal advisers, and those of the Department of Defense, CIA, FBI, and other agencies have all reviewed these points and took them into consideration before making the decision to try these terrorists in civilian courts. But that is no guarantee that a judge or jury will reach the same conclusions as did they; just look at O.J. Simpson. Not to mention, by putting them in the civilian legal system they are free to pursue appeal after appeal, essentially taking advantage of the very legal system they have sought to bring down since 1993. It also sets a precedent for future terrorists to seek trials through civilian courts. Likewise, any decisions made in the rulings of these first five with respect to what is or is not allowed will establish how all future cases are pursued.
I completely disagree with President Obama's decision to bring these terrorists to the U.S. for trial. I think it opens us up for scrutiny of the practices used to capture and hold terrorists, not to mention allowing that information out into the public domain where future terrorists can learn lessons, and will delay justice for the survivors of 9/11. Of course, there are those that will argue that bringing these individuals back to the scene of their crimes will provide closure for the survivors, but I contend the survivors will not have closure until these animals are 6-feet under, and I do not think they care how they get there or who puts them there.