HRF Policy Paper Makes "The Case Against A Special Terrorism Court"

Human Rights First has released a timely policy paper rejecting recent proposals to create systems of indefinite detention without criminal charge and special courts to try terrorism detainees, and describing the danger of such proposals to both U.S. counterinsurgency strategy and the American justice system. "The Case Against A Special Terrorism Court" recommends that terrorism detainees be tried in the time-tested federal court system, which the HRF report, In Pursuit of Justice, revealed to have successfully prosecuted over 100 terrorism cases since September 11. The policy paper's release follows the Obama Administration's recent decision to uphold the policy of indefinite detention at Guantanamo Bay using its own rationale, which HRF analyzed in a recent Jurist posting.

SUMMARY

Terrorist suspects should be prosecuted in the federal criminal courts

• The federal criminal justice system has a proven track record of success in international terrorism cases: More than 100 terrorism cases have been prosecuted in the federal courts since September 11, 2001.
• The federal criminal justice system is capable of handling complex terrorism cases without compromising national security or sacrificing standards of fairness and due process: Based on the public record, none of the international terrorism cases brought since September 11, 2001 has been dismissed on grounds related to classified information, and there have been no important security breaches in any terrorism cases in which the Classified Information Procedures Act has been invoked.
• Criminal prosecutions often assist rather than inhibit intelligence gathering: Historically, criminal prosecutions have assisted intelligence gathering. Defendants have the incentive to cooperate with government prosecutors and interrogators because successful cooperation may result in shorter prison sentences.

Proposals for a special terrorism court should be rejected

• A special terrorism court is unnecessary and impractical: Among the many lessons learned from the misguided Guantánamo episode are the practical difficulties of trying to create new, ad hoc justice systems. Just like the military commissions at Guantánamo, a new court inevitably would be bogged down in litigation and delay.
• Our procedural safeguards and evidentiary standards comprise the bedrock of American justice: A new court would undermine the integrity of the justice system and perpetuate the damage to America’s reputation for fairness and transparency done by unjust military commissions and prolonged detention without charge at Guantánamo.
• Special courts and detention without trial undermine U.S. counterterrorism strategy: Creating a state-side replica of the Guantánamo legal regime would impair counterterrorism cooperation with our allies and fuel terrorist recruitment.

Proposals for a system of detention without charge should be rejected

• Detention without charge is inconsistent with core concepts of liberty and due process: The Supreme Court has repeatedly condemned detention without charge based solely on a perceived risk of future dangerousness.
• A system of detention without charge would be prone to error, and it inevitably would be exploited to pursue those with little, if any, connections to terrorist activities: Without proven mechanisms for predicting future dangerousness, decision makers would likely resort to racial profiling and stereotypes. Errors would be made, innocent people would be detained, and scarce resources would be wasted, further eroding U.S. counterterrorism efforts.

Read "The Case Against A Special Terrorism Court"