Remember when everyone in power claimed that prosecuting terrorists in federal court would inevitably lead to a breakdown in national security? That by providing accused terrorists with constitutional rights like habeas corpus we would be advancing our own undoing? While there are still those that agree with that position, it is also important to note that so far the federal courts are doing pretty well at protecting us and the values we hold dear. And it is our abandonment of those values that may be putting us at risk.
This was most recently displayed earlier this week with the sentencing of Faisal Shahzad, the Times Square Bomber, to life in prison without opportunity for parole. Shahzad pled guilty in June to ten criminal counts including attempting an act of terrorism after the car bomb he planted failed to detonate near Times Square in May 2010.
However this does not mean that civilian prosecutions do not have their potential issues. Most of these are tied to legally questionable practices carried out under the more zealous tenants of anti-terrorism operations. This too was displayed earlier this week when a federal judge ruled against allowing testimony from a potentially valuable witness in the government’s case against Ahmed Khalfan Ghailani, one of the alleged bombers behind the bombing of two American embassies in Africa in 1998. In making the ruling, the judge noted that the witness was identified by government officials through the interrogation of Ghailani while being held in a secret CIA prison overseas. Ghailani’s lawyers insist that he was tortured while in CIA custody and any information obtained in those interrogations is inadmissible as a violation of the defendant’s Fifth Amendment right to due process. In this case, the court agreed and the government now has until next week to decide how to proceed.
There are those now questioning whether this ruling will derail any future attempts to prosecute high level terrorist suspects in federal court. However it is also important to note that such a ruling would not have been necessary if we had adhered to the rule of law we claim to promote when dealing with these suspects in the first place. Granted, as Rob Grace points out over on the Law and Security Strategy blog, applying the term “rule of law” to any of these cases may be accurate but also a bit far-fetched. In the case of security, it appears that even if acquitted there would still be grounds to hold high-level detainees as enemy combatants indefinitely, making it impossible for them to resume their activities against the US. Such action may keep us safe, but strictly relying on it also denies the victims of such activities the justice they deserve in having the cases prosecuted. Justice, after all, is not just about punishment; it is also about having a victim’s story made public and official, and thereby empowering them to stand up to the people who made them victims in the first place. In the debate over what to do with suspected terrorist, the justice argument has frequently been overrun by concerns about security and quests for vengeance. This is part of human nature, but it is also not the whole picture of what we should be fighting for.
This is the world we now find ourselves in and as always there are important lessons to learn about what we should do in the future. For starters, if we start respecting human rights of even our worst enemies, we empower ourselves to bring them to justice. Failing to do so, dehumanizing them the way their propaganda frequently tries to dehumanize us, jeopardizes not only justice but the values central to our society.
Regardless of what they are accused of and their political views, all criminal defendants are people. All people have human rights that all governments are supposed to respect and international law sets out clear limits on what governments can and cannot do to other people. This includes a prohibition on torture. This week’s ruling was probably the comeuppance we had coming for forgetting that. But that doesn’t mean that we need to forget it in the future, and chances are we will all be safer and better off for remembering all that we stand for and not compromising those basic beliefs.
Originally published on Foreign Policy Blogs