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A Better Way to Prosecute Terror Suspects

The White House today withdrew charges against Abd-Al Rahim al-Nashiri, the al Qaeda operative who lead the attack on the USS Cole in Aden harbor, Yemen in October 2000, and was awaiting trial in a reformed military commission in Guantanamo Bay.

Reasons for the withdrawal remain unclear, but one possibility is that the Obama administration is not comfortable with how rules for the new military tribunal system are being implemented.

As background, on the campaign trail in 2008, then-Senator Obama campaigned against the Bush version of military tribunals.  In office, the president endorsed the 2009 Military Commissions Act, which reformed Bush’s military tribunals by letting, say, the defendant actually cross-examine witnesses and call witnesses in their defense.  (You can read details of the 2009 law, and how it improves Bush’s 2006 iteration, here.)

Any discomfort from the White House may stem from another dropped case this year against a Guantanamo detainee. In May, the Administration scuttled charges against Omar Khadr, a Canadian, when it became uncomfortable with  interpretation of certain legal definitions in the 2009 Act.  Based on the Khadr precedent, one Administration estimate believed up to one-third of the Guantanamo proceedings might be canned on similar grounds.

We’ve been operating in this legal limbo for nearly ten years:  the system for prosecuting terrorism suspects is an ad hoc, inefficient mish-mash of stop-gap solutions.

But there are better solutions. One is “National Security Court,” along the lines of what the – gasp – French have.  Harvey Rishikof made a strong argument for this in PPI’s Memos to the New President:

As a practical matter, however, it will be difficult for you to close Gitmo without an appropriate legal framework for adjudicating terrorism cases.

Such a framework is urgently needed. …

In the French system, an investigating judge is essentially a special prosecutor in charge of a secret, grand jury-like inquiry through which he can file charges, order wiretaps, and issue  warrants and subpoenas. These judges can request the assistance of the police and intelligence  services; order the preventive detention of suspects for six days without charge; and justify  keeping someone behind bars for several years pending an investigation. The judges have  international jurisdiction when a French national is involved in a terrorist act, be it as a perpetrator or as a victim.

Clearly, this is by no means an ideal to be adopted wholesale by the American justice system.  Several of the French magistrates’ powers would run far afoul of proper constitutional safeguards in the United States. It is worth noting, however, at least one benefit of the French  system that we could readily emulate: It has produced a pool of specialized judges and investigators adept at prosecuting terrorist networks.

Of the Bush administration’s many failings in the so-called GWOT, perhaps its greatest is that it never defined the rules of the road to prosecute those who had harmed us.  A National Security Court would right that wrong.


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