Holder Should Reject Military Commissions and Indefinite Detention Policy by Leili Kashani

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Leili Kashani [Education and Outreach Associate, Guantánamo Global Justice Initiative, Center for Constitutional Rights]: "On April 14, 2010, Attorney General Eric Holder appeared at a hearing before the Senate Judiciary Committee to answer a range of questions about the Department of Justice. While CCR was glad to see that Holder has not ruled out trying the alleged 9/11 plotters in New York and in federal courts, we were dismayed that he did not reject the irredeemably flawed military commissions and an ongoing policy of indefinite detention without charge or trial that only serves to move Guantánamo to a new location and give it a new name.

Military commissions are politically driven and constitute a second-rate system of justice reserved exclusively for Arab and Muslim men deemed unworthy of our criminal justice system. They were designed to manufacture convictions and allow men to be tried in secret without the right to confront their accusers and based on evidence obtained by coercion or compulsory self-incrimination, including illegal interrogation methods. They deservedly lack credibility in the United States and abroad, and their rulings will be delayed or overturned by many years of litigation. As an unfair system, they not only risk convicting the innocent, but also provide someone who is truly guilty with a valid complaint to challenge his conviction. This delays justice and doesn't help anyone. The United States has a long history of effectively and safely trying terrorism suspects as criminals in federal courts; there has never been any significant security breach, and there is no legitimate reason to turn away from federal courts now.

Holder and Democratic lawmakers repeatedly defended using both federal courts and military commissions for trials by citing Justice Department statistics: more than 400 terrorists have been convicted in federal courts since September 11, 2001, while during the last 8 years only 3 men have been convicted in military commissions. CCR supports federal courts because they are more just and effective, not because, as one Democratic senator put it, they allow the government to have the flexibility to select the court best poised to secure a conviction.

Holder's assertion that 48 men currently at Guantánamo will be held indefinitely without charge or trial should startle us, and again confirms that the Obama administration is more concerned with shutting down the symbol of Guantánamo than with ending the fundamental abuse of power and law that exists there. The administration has said that indefinite detention is necessary for "people who cannot be prosecuted for past crimes, in some cases, because evidence may be tainted, but who, nonetheless, pose a threat to the security of the United States." What the Obama administration continues to obscure is that evidence "tainted" by torture or coercion is no evidence at all, and if a man cannot be proven guilty in a court of law based on legitimate evidence, then he must be released.

Holder's weak response in the face of Senator Lindsey Graham's (R-S.C.) insistence that the country is fighting a war "where the whole world is the battlefield" revealed a key continuity between Bush and Obama administration policies. The Obama administration has justified inheriting the expansive detention powers claimed by the Bush administration by maintaining that the US is locked into a boundless war against an amorphous enemy. Accepting this premise undermines the Obama administration’s capacity to forcefully defend its own policies against Right-wing attack. Having cast terrorists as combatants rather than criminals, and having characterized the country as being in an endless war with a stateless enemy, the Obama administration has a harder time advocating its policies of shutting down Guantánamo, supporting federal trials for terrorist suspects, respecting human rights, and restoring the rule of law.

The Center for Constitutional Rights has consistently rejected the logic of the so-called "War on Terror" and considers terrorism to be a criminal act rather than an act of war. CCR will continue to advocate an end to military commissions and indefinite detention wherever it occurs: whether it continues at Guantánamo, is brought to the United States, or is perpetuated elsewhere. The men detained must be charged in federal courts or released; there is no acceptable third category of individuals who can be held indefinitely without perpetuating the egregious abuses of that island-prison, further damaging our democratic institutions and threatening our collective safety."

Original Jurist op-ed appears at “Holder should reject military commissions and indefinite detention policy.”

For a longer assessment of the Obama administration’s record, see this report.