Trying Terrorist Cases

John Coughenour, a US Federal judge has an op-ed column in today's Washington Post arguing against a separate court for Guantanamo detainees.

Detractors of the current system argue that the federal courts are ill-equipped for the unique challenges that terrorism trials pose. Such objections often begin with a false premise: that the threat of terrorism is too great to risk an "unsuccessful" prosecution by adhering to procedural and evidentiary rules that could constrain prosecutors' abilities. This assumes that convictions are the yardstick by which success is measured. Courts guarantee an independent process, not an outcome. Any tribunal purporting to do otherwise is not a court.

So alas, simultaneously the Washington Post editorial board felt compelled to protect the current administration from national as well as global reproach for their own enigmatic reasons. But after all the stanch proof that has been steadily reported on how the Bush administration practiced enhanced interrogation techniques, (torture), I truly do not see any legitimate way to proceed with the veil apparatus of possible torture use at the core of every deliberation from a Guantanamo tribunal court.

...modern realities strongly argue against using the federal courts as the exclusive arena to hold or try all terrorism suspects. Most terrorism prosecutions, including the 1993 World Trade Center case, are brought after terrorists have struck. The first priority of a president must be to protect the country from attack. The president must have the legal flexibility to detain those against whom there is credible, actionable intelligence but not enough evidence to bring charges.

Traditional federal court proceedings also present security challenges. Although the most sensitive national security information could be shielded from public consumption through existing laws, the openness of federal court proceedings risks handing unclassified but valuable information to those who would harm this country. The protections afforded to defendants in federal court -- including the right against self-incrimination -- work against legitimate intelligence-gathering interests.

There will always be the question of how alleged "actionable intelligence" was gained and supposed "legitimate intelligence” acquired by this administration and it's abominable use of torture. In this regard, the Bush Administration has made the case for closing Guantanamo by not keeping to the terms of the Geneva Conventions. There really is no workable solution around that ugly fact.