Professor Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law, was quoted in the November 11, 2008 Newsday article “Experts ask can U.S. courts can handle terrorism cases” by Tom Brune.
WASHINGTON – As Barack Obama prepares to move into the White House, the U.S. judicial system is once again being put on trial over a hard question posed by the president-elect’s vow to close Guantánamo Bay: Can our courts handle terrorism cases?
For the past seven years, the Bush administration has argued the courts aren’t up to the challenge, citing the need to hold detainees based on classified evidence and raising concerns that trials might expose the secret methods used to identify, track and catch suspected terrorists.
An Associated Press report yesterday, however, said advisers on Obama’s transition team so far have come up with a mixed answer to the question – yes and no.
Many of the 255 detainees would be sent to the United States for trials in criminal courts, the report said advisers were thinking, but difficult cases would go before a new “hybrid” court.
It’s a still-evolving answer that satisfies few on either side. And it raises a possibly even more contentious issue: Should accused terrorists be treated as combatants in a global war or as criminals engaged in illegal acts?
President George W. Bush has labeled terrorists as unlawful enemy combatants who should not enjoy commonly held rights, a view held by many in his party.
“The idea that we should be trying terrorists in civilian courts and affording them the same rights as U.S. citizens is irresponsible,” said Rep. Peter King (R-Seaford), the ranking Republican on the House Committee on Homeland Security.
Meanwhile, some Democrats and many human rights advocates argue for a return to the pre-9/11 use of criminal courts for trying suspected terrorists.
They are wary of Obama’s following in the steps of Bush by creating another legal process outside of the courts. Bush’s military tribunals have suffered three Supreme Court defeats.
“All this talk of a special ‘hybrid court’ is a solution looking for a problem,” said Eric Freedman, a Hofstra University constitutional law professor.
“There is absolutely nothing that the United States government would want to achieve in this area that it could not achieve in the tried and true U.S. justice system,” he said.
Earlier this year, the advocacy group Human Rights First released a study of 183 terrorism prosecutions since the 1990s that found U.S. courts could cope with secrecy and other challenges cited by Bush.
Copyright © 2008, Newsday Inc.