Edward N. Cahn
is a retired chief judge who served on the U.S. District Court for the Eastern District of Pennsylvania from 1993 to 1998
James J. West
was the U.S. attorney for the Middle District of Pennsylvania from 1985 to 1993
We applaud Attorney General Eric Holder's recent decision to try five 9/11 coconspirators in federal court in New York. However, by his decision to prosecute others by military commission, we are reminded that one of the central questions Americans must ask as we work to prevent terrorist acts and to punish those who commit, or seek to commit, them, is one posed by President Dwight D. Eisenhower: "How far can you go without destroying from within what you are trying to defend from without?"
Our country's founders conferred upon the government the power to protect us from our enemies and to prosecute and detain those who violate our laws. They also created a system for ensuring that those efforts are conducted within the boundaries of the Constitution.
But when the nation is under threat, the government focuses on ensuring our security, which can, unsurprisingly, stretch the boundaries of constitutional safeguards to a breaking point. In a time of national emergency, therefore, vigilance in the name of civil liberties is more necessary than ever. We have sorely regretted those times in the past when we have let that vigilance lapse and failed to find the appropriate balance between security concerns and our commitment to our rights and liberties. Although no U.S. citizen of Japanese ancestry was proved guilty of sabotage or espionage during World War II, those citizens were held in facilities that were akin to concentration camps. That scenario should remind us to be very cautious about ignoring civil liberties when our security is threatened.
The Guantanamo Bay detention facility has become a symbol of stretching or exceeding the boundaries of constitutional protection for civil rights. It is now time for us to recognize that our system of trying and detaining the terrorism suspects held at Guantanamo has failed. It has made our country less safe and has not provided justice for the victims of the 9/11 attacks or those being held at Guantanamo. It is time to recognize that our Constitution provides a process for closing Guantanamo responsibly and for prosecuting terrorism suspects and detaining them when appropriate.
Because there is a better way to make the nation secure while abiding by our constitutional principles, we have joined a coalition of more than 130 former diplomats, military officials, federal judges, prosecutors, members of Congress, bar leaders, experts on national security and foreign policy, and family members of victims of the 9/11 attacks in issuing "Beyond Guantanamo: A Bipartisan Declaration." The declaration sets forth principles for dealing with terrorism suspects upon the closing of Guantanamo:
Terrorism suspects should be tried in federal courts.
Indefinite detention without charge should be rejected because it will result in protracted litigation and delayed justice, weaken our international alliances, and undermine constitutional principles at home.
Many of the detainees at Guantanamo have been held for as long as eight years without any charges against them. We cannot simply assume they are guilty. We must instead bring those individuals suspected of terrorism to trial, and, if they are determined to be guilty, impose appropriate punishment.
Our federal courts are the proven and reliable way to provide justice, while our federal supermax prisons can securely hold defendants before and during their trials and throughout the sentences imposed. No one has ever escaped from these prisons. Federal courts have demonstrated themselves to be far more effective in processing terrorism cases than have the military commissions established at Guantanamo. Since 2001, almost 200 terrorism suspects have been convicted through our federal court system, compared with only three convictions of low-level terrorists through commissions at Guantanamo.
Our country's detention policy has resulted in extensive litigation, on several occasions ending at the U.S. Supreme Court. This litigation has included challenges to the use of military commissions to try the detainees at Guantanamo. The Supreme Court struck down the original, post-9/11 military commissions for failure to follow basic principles of constitutional and international law. Challenges to the commissions have delayed their ability to proceed and will no doubt continue to do so. Despite recent legislative reforms, these tribunals still do not apply the same constitutional safeguards as our federal courts. The perception - and perhaps also the reality - remains that the military commissions' purpose is not to find the truth about guilt or innocence, but rather to convict at nearly any cost. This is not the American way.
Guantanamo has plagued our country for more than eight years and will continue to do so unless we finally get it right. "Beyond Guantanamo" provides a constitutional and responsible plan for dealing with the detainees, and we believe that its principles will serve our country well even after that facility is closed. We can keep our country safe while still adhering to the rule of law and the values that are embodied in our Constitution, which have stood the test of time for more than 200 years. It is time to make the right decisions. If we do not, we risk "destroying from within" what we are "trying to defend from without."