ACLU Urges Obama Administration To Stand By Decision To Try 9/11 Suspects In Federal Criminal Courts

March 19, 2010 6:23 pm

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White House Should Not Use Constitutional Values As Bargaining Chips, Says ACLU

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NEW YORK – In light of news reports today indicating that some White House staff could be trying to reverse Attorney General Eric Holder’s decision to try the 9/11 suspects in federal criminal courts rather than in the discredited military commissions system, the American Civil Liberties Union renewed its call for the Obama administration to stand by its original decision. According to the reports, Senator Lindsey Graham (R-SC) is attempting to broker a deal with White House Chief of Staff Rahm Emmanuel to try more terrorism suspects in the military commissions system in exchange for support for closing Guantánamo. President Obama has reportedly not yet reached a decision.

As a candidate, President Obama, referring to the military commissions, said that he would “reject a legal framework that does not work.” Despite some improvements in legislation, the commissions remain unworkable.

The American Civil Liberties Union urges President Obama to uphold the principled decision of Attorney General Holder to use federal criminal courts and not back down in the face of political pressure.

“President Obama is at a tipping point where he will either restore American values such as fair trials, due process and the rule of law or he will continue the disastrous policies of the Bush administration and compromise our ability to seek justice at home and abroad,” said Laura W. Murphy, Director of the ACLU Washington Legislative Office. “Constitutional values are not bargaining chips to be traded away in return for political support.”

Since 9/11, there have been over 300 terrorism-related convictions in federal court. The military commissions have completed only three terrorism-related cases, with two of the three convicted defendants having served relatively short sentences they have already completed. The military commission system is plagued with problems that are sure to result in questionable outcomes and legal challenges, causing even further delays in finally achieving justice in these cases.

“The federal justice system has experienced judges, experienced prosecutors, a track record that includes hundreds of successful terrorism prosecutions, and procedural rules that have been tested and refined over two centuries,” said Jameel Jaffer, Director of the ACLU National Security Project. “To displace this system for a military commissions system that does not have rules, that is certain to result in further delay, that has resulted in only three convictions over eight years, and that is viewed as illegitimate by much of the rest of the world, would be indefensible and irresponsible. Attorney General Holder’s decision to use federal criminal courts was the right decision for national security and the right decision for the rule of law. The Obama administration should reaffirm the decision, not reverse it.”

The military commissions allow the admission of hearsay evidence, which means that unreliable accusatory statements can be introduced in court without the defendant having the opportunity to confront his accuser. The commissions that have occurred so far have been chaotic and uncertain, and updated rules to comport with the latest legislation have, despite a passed deadline, not even been promulgated yet. When they are, they will not even answer questions like whether a defendant can plead guilty in a death penalty case or clarify procedure regarding coerced evidence. Another problem is that the commissions can only be used to prosecute “aliens,” essentially creating a two-tier justice system for Americans and others, an issue that could easily result in challenges to the whole regime.

Additionally, while military judges and lawyers are generally capable and eager to see justice done in terrorism cases, most military judges, like the commissions system itself, lack experience in handling complex international cases, much less those involving terrorism. Their prior experience mostly involves adjudicating “ordinary crimes” by members of the military – few death penalty cases and almost no conspiracy cases.

Today’s news reports also indicate that the White House could announce that it will indefinitely detain some Guantánamo detainees it does not plan to prosecute, likely in a prison in Illinois. Detaining individuals indefinitely without charge or trial is un-American and violates our commitment to due process and the rule of law. The American system of justice demands that we try those suspected of a crime and punish the guilty.

More information about why terrorism suspects should be tried in civilian courts is available online at:

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