President-elect Obama's advisers are quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, a plan that would make good on his promise to close the Guantanamo Bay prisonAnd with that, he's justified my vote. But there are aspects to this I'm not entirely sold on yet. He's closing the prison, which is awesome. He's releasing or moving into the Federal Court System most of the detainees, which is excellent. But then we get this:
A third group of detainees — the ones whose cases are most entangled in highly classified information — might have to go before a new court designed especially to handle sensitive national security cases, according to advisers and Democrats involved in the talks.A special court designed to handle "sensitive national security cases". There's a red flag for me, right there. That seems to be a step right back toward the secret courts we have now. How would this court be different from the regular court system, one might ask? Well, the article goes on to state the reasons for having a special court, so one might glean a hint or two there:
"It would have to be some sort of hybrid that involves military commissions that actually administer justice rather than just serve as kangaroo courts," Tribe said. "It will have to both be and appear to be fundamentally fair in light of the circumstances. I think people are going to give an Obama administration the benefit of the doubt in that regard."So they have to be "fundamentally fair", while admitting evidence that would normally be deemed inadmissible, and preventing the defense from vigorously challenging testimony offered against the accused. This is progress, how? I mean, it's nice that we'll no longer be water-boarding innocent farmers along with the (very) few actual terrorists we pick up, but the above items are two of the 3 biggest problems with the commissions. If we are not capable of extending true due process in these cases, should we be trying them at all?
Though a hybrid court may be unpopular, other advisers and Democrats involved in the Guantanamo Bay discussions say Obama has few other options.
Prosecuting all detainees in federal courts raises a host of problems. Evidence gathered through military interrogation or from intelligence sources might be thrown out. Defendants would have the right to confront witnesses, meaning undercover CIA officers or terrorist turncoats might have to take the stand, jeopardizing their cover and revealing classified intelligence tactics.
We have had a functioning civilian court system for 200+ years. It has dealt with sensitive material and testimony numerous times. I see no compelling reason to set up a new, quasi-opaque system just to deal with a few terrorism suspects. Our courts worked for the Mafia, they should work for terrorists. Unless, of course, the objective is to provide the government with the means to circumvent the law.
If your case can't pass muster in front of the court, the problem probably isn't the court: it's probably your case. Just sayin'.