Anthony D. Romero is executive director of the American Civil Liberties Union.
The way some people are carrying on these days about the Obama administration's decision to handle would-be Christmas Day bomber Umar Farouk Abdulmutallab in the criminal justice system, you'd think the Constitution was a new document they weren't used to yet. Or that applying it was optional. Or that it hasn't been used over and over again for suspected terrorists. The Obama administration's correct decision to treat Abdulmutallab as an accused criminal is required by law, has proven successful in collecting valuable intelligence, and is standard legal procedure used even by the Bush administration.
Under the U.S. Constitution, the government interrogates and prosecutes criminal suspects in its custody under a justice system that presumes innocence until guilt is proven. That provides for due process. And that allows for convictions and sentences we can trust exactly because those very protections are provided. Perhaps to their own dismay, terrorists are criminals, not warriors, and should be treated that way.
While the laws of war allow for the detention without trial of true battlefield captures until the "end of hostilities," those laws don't apply to terrorism suspects picked up far from any battlefield in a "war" that knows no geographical boundaries or discernible ending, despite both the Bush and Obama administrations' assertions to the contrary. They certainly don't apply to suspects like Abdulmutallab, who was captured in the United States.
Handling terrorism suspects in the criminal justice system is standard legal procedure; there is nothing radical or extraordinary about it, especially when dealing with those captured in the United States. Since 9/11, the United States has arrested and detained under criminal law all terrorism suspects, without exception, apprehended within its borders. The Bush administration itself adopted policies expressly endorsing this approach, with no backlash and no disastrous results. While the retort "George Bush did it, too" is not usually a reason to endorse counterterrorism policy, that approach, in this case, was and remains the right one.
It's true that in two cases the Bush administration moved terrorist suspects captured on U.S. soil out of the criminal justice system and into military detention as "enemy combatants." Both suspects, though, were eventually moved back to the civilian system after serious legal and constitutional challenges. Both men, Jose Padilla and Ali al-Marri, were convicted and are serving prison sentences.
When it comes to detainees captured on foreign soil, the Bush administration's disastrous record of torture, its minimal record of convictions in the military commissions, and the harm to our international standing—and, therefore, security—should speak for the disastrous results of bypassing our justice system.
Law enforcement agencies like the FBI have experienced professionals whose careers are devoted to skillful interrogation. They know how to gather intelligence lawfully and without "enhanced" torture techniques. The evidence they collect, unlike that collected illegally under the Bush administration, can be used to prosecute and convict terrorists. And those convictions can be trusted because proper procedure has been followed. This is not the case when we throw suspects into secret military detention, coerce statements that may or may not be true, and put them into a second-class system like military commissions.
The Abdulmutallab arrest is a case in point. Reports indicate he continues to provide valuable intelligence about his failed attempt to bomb an airliner and his terrorist connections, perhaps because he was subjected to skilled questioning and because law enforcement had the wealth of tools at its disposal that come with following the law. In fact, it is reported that bringing Abdulmutallab's family to see him, which would not have happened if he were in military custody and denied his rights, played a key role in his willingness to cooperate. In other words, he is being treated as a criminal defendant, and he is talking. Abdulmutallab is only one of dozens of suspected terrorists who have cooperated when in the criminal justice system.
As to trying suspected terrorists, the record amply shows that our federal courts are well equipped to handle national security cases while providing due process. There have been hundreds of successful terrorism prosecutions in our courts, before and after 9/11. These include the cases of shoe bomber Richard Reid, who pled guilty in 2002, and 9/11 conspirator Zacarias Moussaoui, who was convicted in 2006. Both are serving life sentences.
Military commissions, on the other hand, despite recent improvements, remain a second-class system of justice that fails to meet both domestic and international legal standards. They have never been used for a murder trial, much less cases as complex as the pending terrorism prosecutions of the 9/11 suspects. The commissions have been mired in legal challenges and controversy, and, since 9/11, have delivered only three convictions, two resulting in sentences of less than a year (plus time at Guantánamo, in one case).
It is somewhat stunning that this controversy continues, considering the legacy of the previous administration. Throwing suspects into secret detention without due process and, in many instances, torturing and abusing them not only deeply hurt our international reputation; it also has failed to gather useful intelligence and has created a situation where some of the evidence that actually was collected is unreliable and now can't be used for prosecutions in any forum because it is tainted by torture.
Americans should resist fearmongering and refuse to let ideology dictate our national security policies. We should strive to both keep the country safe and uphold American values. If we abandon those values, we've really lost what it is we're fighting for.
Read why safety and national security mandate military trials for terror suspects, by Rep. Louie Gohmert of Texas.