Why Courts Cannot be Entrusted with the War on Terror: Blind Judicial Trust and the Need to Keep Detainees at Gitmo

For anyone still clinging to the fallacious belief that the War on Terror should be chiefly a law enforcement effort involving prosecution in the U.S. court system, as the Clinton administration attempted, an AP report today provided another illustration of why that approach has never been, and will never be, a successful path to eventual victory.

As reported in the New York Sun, Mohammed Salah, a convicted suspect awaiting sentencing in Illinois for perjury in a case involving a conspiracy to launder money for the terror group HAMAS, was not considered a flight risk by U.S. District Judge Amy St. Eve, and will be allowed to remove a court-ordered electronic tracking device for his upcoming pre-sentencing vacation at Disney World. According to the Sun article, the Assistant U.S. Attorney in the case tried in vain to convince the judge that Salah’s promises to return to court for sentencing in June, made as they were by a convicted perjurer with links to a terror group, should not be trusted. The judge dismissed this logic, stating, “I’m confident that he will come back.” A delighted Salah reacted to the judge’s permissiveness:

"I get to take it off," a smiling Salah told reporters after court, pointing to a bulge under his left sock where the government has placed an electronic monitoring bracelet to make sure he stays under house arrest.

Judge St. Eve is living proof that President Bush has not appointed exclusively conservative judges during his terms in office. St. Eve, whose views and education are consistent with 1960s liberalism, admitted at her appointment in 2002 to not sharing the President’s political ideals: “Had there been a litmus test on a hot-button conservative issue, ‘I don't know how I could have passed,’ she confesses.” St. Eve's trusting nature is merely a symptom of the larger problem within the judiciary: Not taking the threat of terrorism seriously. For further examples of cases where judges ruled against the War on Terror, click here.

While Salah is grateful for St. Eve’s liberalism and happily sheds the ability of the Justice Department to monitor his whereabouts, another developing story demonstrated that misplaced faith in the judicial system’s efficacy in fighting terrorism is not limited to gullible judges. The Richmond Times-Dispatch (VA) reported today that Democratic members of the U.S Congress are pursuing legislation to close the terrorist detention facility at Guantanamo Bay, Cuba, and move detainees to brigs at military bases on the east coast, including the Quantico Marine Corps Base.

While Democrats have claimed that the expenses associated with Guantanamo justify closure of that facility, their pious demand for fiscal responsibility on this issue should be met with skepticism. Democrats have sought throughout the War on Terror to curb President Bush’s war powers, and forcing a closure of the detention facility at Guantanamo would be more than a symbolic victory in the only war they want to win, the War on Bush. Closing Guantanamo and moving prisoners to bases in the U.S. would effectively remove the detainees from Bush’s control as Commander in Chief and place them under the protective care of the Democrats’ preferred source of all rights and authority, the judicial system. The Times-Dispatch article confirms that granting legal rights and defense attorneys to terror detainees is at the heart of the matter:

Rep. James P. Moran, D-8th, said yesterday that he favors bringing Guantanamo detainees who have been charged with offenses to military brigs in the jurisdiction of the Richmond-based 4th U.S. Circuit Court of Appeals.

"That's the most conservative circuit court" in the nation, said Moran, a senior member of the House defense appropriations subcommittee. "So nobody can charge [the detainees] won't get a speedy and disciplined trial."

Representative Moran and his Democratic colleagues have not learned from the mistakes of the Clinton administration and continue to put their trust in a judicial system that has already proven incapable of investigating, punishing, and deterring terrorism. While the Clinton Justice Department investigated and ultimately prosecuted Ramsey Yousef for the 1993 World Trade Center bombing, others were planning and training for upcoming attacks on our embassies in Tanzania and Kenya, the USS Cole, and eventually 9/11. There is nothing in a criminal trial that can force a defendant to divulge operational information about his organization or co-conspirators. As long as the defendant is willing to accept prosecution and a prison sentence as a form of martyrdom for the cause, prosecutors have no leverage to apply in order to obtain intelligence information that could prevent future attacks or identify other terrorists.

From a purely practical perspective, the argument that operating the detention facility in Guantanamo costs the taxpayers too much money is dubious. If the detainees are moved to bases within U.S. District Court jurisdiction, taxpayers will be financing the legal costs for court proceedings, which will endure for years through endless appeals, as well as what would surely be upgraded housing and dietary provisions compared to Guantanamo. Representative Moran should be challenged to produce a cost comparison between current Guantanamo expenses and those his proposal would incur. Since this is actually a political stunt rather than a legitimate cost-cutting measure, I suspect Americans will never see any such comparison study made available for review.

How did Virginia’s Republicans react to the proposed move of these detainees to bases inside the U.S.? From the Fredericksburg Free Lance-Star:

"The Democrat Congress may think it's a great idea to move Islamic Jihadists less than 35 miles of the Pentagon, but it strikes me as poorly conceived," said RPV chairman Ed Gillespie, in a press release. "Moran's proposal would not be good for our national security, and it would not be good for the people in Stafford and neighboring counties."

Rep. Jo Ann Davis, R-Gloucester, also released a statement criticizing the proposal--including the anonymous suggestion of keeping terrorism suspects at Quantico--calling it "reckless policy."

"Bringing terrorists to Quantico, among other places, poses a homeland security threat," said Davis, whose district includes Stafford. "We in Congress are supposed to be working to keep terrorists out of America, not helping to bring them in."

Our court system does not strike fear in the heart of any terrorist and offers no hope for deterrence of future terrorist attacks. One need only point to the juries in the O.J. Simpson or “Scooter” Libby trials for examples of how easily juries can be duped by cleverly presented appeals to their racial or political sympathies. Terrorists would consider it a great luxury and good fortune to be prosecuted in U.S. courts. They would like their chances for acquittal, but even if convicted they would enjoy planning their subsequent unmonitored trips to Disney World.

Perhaps Judge St. Eve and Representative Moran could collaborate with Disney World on a project that would end terrorism through our liberal goodwill: Disney Detainee Day! After a few hours of continuous sailing through “It’s a Small World,” the jihadists will desperately sue for peace. On second thought, we are told that torture is an ineffective tool in the War on Terror. The ankle bracelet-free Salah would surely agree that when it comes to prosecuting terrorism in America’s courts, “it’s a world of laughter. . . .”