After Guantanamo: What’s Next?

Human Rights First has long argued that the prolonged detention of prisoners at Guantanamo – and the military commissions created to try them – undermines effective counterterrorism policy and violates basic principles of justice and human rights.

As the consensus grows across the political spectrum that Guantanamo has been a failure and should be shut down, some have argued that the United States should replace the detention and military commission system there with a state-side version – domestic administrative detention without trial, and a separate court system created to try only terrorism cases. We believe this would be a profound mistake.

And it is unnecessary. As documented in a new study undertaken for Human Rights First by Richard Zabel and James Benjamin Jr., two former federal prosecutors now at the law firm of Akin Gump, the federal court system has proven itself capable of adapting to the challenges posed by complex terrorism cases, with a track record of convictions that puts the military commissions to shame. Our report In Pursuit of Justice is the product of a year-long examination of motion papers, docket sheets, judicial opinions, and press accounts of more than 100 terrorism prosecutions, as well as interviews with prosecutors, defense lawyers, and judges with firsthand experience litigating these cases. The report analyzes in particular those features of the regular criminal justice system identified by proponents of special terrorism courts as obstacles that they argue necessitate a separate system, including pre-trial detention powers, rules for protecting classified evidence, the government's discovery obligations, the authentication and admissibility of evidence collected abroad, and other aspects of the federal system. Using numerous case-specific examples, the report establishes that existing laws not only cover a broad spectrum of terrorism-related crimes but also, in the vast majority of known cases, provide an effective basis for detaining and monitoring suspects. It explains how federal criminal courts balance defendants' rights to review relevant evidence with the need to protect sensitive national security information – a challenge that continues to face the military commissions. And it discusses how the rules of admissibility and authentication are applied in a common-sense manner to evidence collected abroad.

Turning to Rich Zabel and Jim Benjamin to work with HRF on this report is a hallmark of how we approach our work. Prosecutors and human rights advocates do not always see eye to eye on issues and indeed we will differ on some issues when it comes to prosecuting suspected terrorists. But if our policy makers and leaders are to make informed decisions about what works best and is in the best interest of the country, it is essential that we reach out to allies, sometimes in unlikely places – just as we have in our work with retired military leaders to end the use of torture in America’s name. The answers don’t always come from the right or the left, or the liberal or conservative point of view. They come from reaching across the aisle and across perceived biases and barriers to work together to preserve the values and principles upon which our country was founded.