Finding a Better Way to Prosecute Terrorists

Glenn Sulmasy says a hybrid judicial process could convict the bad guys and make the U.S. look good.


You say the 2008 Supreme Court ruling Boumediene v. Bush has thrown national security law into chaos. Why?

It was providing one constitutional right to the detainees, and that constitutional right was the right of habeas [corpus]. But what they didn't do in that decision was provide any sort of guidance for how this is supposed to work. So what you have now is just judges and federal district courts in Washington, different ones making decisions sort of in a haphazard format. When you talk about prisoners of war in traditional armed conflict, they don't have any habeas rights. They're held in a detention facility until the end of hostilities. Boumediene gave more rights to the detainees in this process than a prisoner of war who abides by the laws of war in traditional armed conflict.

Why should the detention and trials of suspected terrorists be held on U.S. soil?

That goes back to the idea of promotion of the rule of law and showcasing our wonderful system of justice. We would have very fair trials. It's important from a diplomatic perspective that if we won't allow any detainees onto our soil at all, we run the risk of hurting ourselves in terms of trying to repatriate those that we know are not a threat.

What's your response to critics who say that moving these detainees to U.S. soil would be dangerous?

Gosh, we have detention facilities all over, high maximum-security prisons. I don't hear many people in the community being assaulted or someone escaping from [these] prisons. So I think we have to be realistic about not engaging in hyperbole . . . that it's going to be some sort of a danger to American citizens.

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