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Pro: While civilian trials are constitutional military tribunals are far more fitting

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James Jay Carafano
February 6, 2010
EDITOR’S NOTE: The writer is addressing the question, Should the United States try terror suspects before military tribunals rather than in civil courts?

Beware of fixating on Guantanamo Bay and the coming terrorist trials. You just might miss the real issue of how to deal with captured terrorist suspects.


Why expend a lot of energy arguing about whether we should close the terrorist detention facilities at Gitmo? It ain’t gonna happen! Congress isn’t inclined to approve funds to rig out a new home for detainees in Illinois. Detainees’ lawyers would fight any attempt to transfer their clients. And few in Congress would vote against a bill demanding that the White House keep all remaining Gitmo detainees out of this country.


Bottom line: Gitmo detainees won’t be packing their bags for the United States anytime soon.


Likewise, we shouldn’t expend a lot of energy wrangling over the trial venue for the terrorists who planned 9/11. President Obama certainly has the authority to try terrorists in federal court, just as he has the authority to try them in military commissions. Both methods are perfectly constitutional, and both would give terrorists a fair trial.


Moving the trials to New York is pure political theater—and rather pricey. New York officials estimate the move will cost the city $400 million. So yes, abandoning perfectly good and secure trial facilities in Guantanamo Bay will cost taxpayers a lot more to achieve the very same ends. But $400 million is pocket change to this administration.


Don’t get me wrong. Talk of closing Gitmo and moving the trials to the Big Apple are dumb ideas. But they are really little more than exercises in political posturing. They help the president curry favor with left-wing critics of the Bush administration without having to substantively change Bush policy.


But the White House has failed the nation, not so much in making these choices, but by doing nothing to prevent future meddling by judges and lawyers in U.S. detention policy.


As a result, detention policy—which should be determined solely by the people’s elected representatives, the commander in chief and Congress—remains uncertain.


President Obama wants to be different from Bush. He wants to placate every critic of Bush’s detainee policy, from the ACLU to the European Union. At the same time, he wants to appear strong on national security. Yet after “studying” the issue for a year, he still seems pretty clueless on how to square the circle.


Just how clueless became evident in November, when Attorney General Eric Holder testified before Congress. He could not come up with one compelling legal argument why trials in New York were superior to military tribunals in Guantanamo. When Sen. Lindsey Graham asked where the White House would try Osama bin Laden if they caught him, Holder sheepishly answered, “It depends.”


Obviously, the administration still has not thought this whole thing through. It should.


The terrorists swept up in the wake of 9/11 won’t be the last to fall into American hands. If the president holds to his vow to go after terrorist cells wherever they are, the next wave of detainees will most likely be snatched up by the military or the CIA or allies who will turn them over to us in the dark of night, without warrants or Miranda Warnings.


These detainees will have lawyers. They will proclaim their innocence and claim torture. Their relatives will go on BBC and second all these claims.


Then critics will hurl the same invectives at Obama that they heaped on Bush. And Obama will have no better answer—because rather than address detainee issues substantively, the administration opted for show trials and promises of job creation in Illinois. That’s no way to fight a war on terrorism.


James Jay Carafano is senior research fellow for national security and homeland security at the Heritage Foundation. Readers may write to him in care of The Heritage Foundation, 214 Massachusetts Avenue NE, Washington, D.C. 20002; Web site: www.heritage.org.

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