With the recent decision by the Obama administration to try foreign terrorist Khalid Sheikh Mohammed in New York City under civilian courts and the controversy over statements made by liberty-defender and US Senate candidate Rand Paul on the matter, I feel it necessary to present my position on the issue. Few have heard it, and it is about time I lay my neck out on the line with regard to this controversial issue.
First, let me lay out some general beliefs and positions I hold on the matter.
1. Terrorists should be brought to justice. Though I am against our wars in the Middle East, I do not support our enemies, and anyone who carries out acts of terror and war against the United States and its citizens deserves to be brought to justice.
2. The rule of law must be respected. I am a Constitutionalist and no one is quicker to call for adherence to the rule of law than myself even if the results are unpopular.
3. I am against unlawful detention. We must never detain anyone, citizens or not, without due process.
4. The United States should hold ourselves to a higher standard than that of our enemies. Our Constitution itself presents a higher standard, and foreign actions should not dictate our own.
I firmly believe that what has been going on at Guantanamo Bay is beneath the United States, fundamentally wrong, and inexcusable. That being said, we should not seek remedy through swinging too far in the other direction.
I agree with Dr. Rand Paul’s statement: "Foreign terrorists do not deserve the protections of our Constitution. These thugs should stand before military tribunals and be kept off American soil.” (as long as his statement is tailored to the current matter at hand)
Does this mean that I agree with the Bush administration’s position or that of a many “conservative” commentators? By no means! Rather, I am disgusted by the fear mongering that I see going on in the media. I am fully confident in our ability to hold, try, and carry out justices toward terrorists on our own soil. I don’t buy these arguments cloaked in fear, and I would argue quite the opposite.
However, there have been many horrible acts done in the name of safety and defense over the last 8 years, and going out of our way to do something we are not constitutionally constrained to do is a mistake.
We must not be quick to wed our own views of what is right with that of the Constitution.
Military tribunals do satisfy due process requirements under the Constitution, they can be useful and just tools in trying citizens (like our troops) and non-citizens arrested on the battle field (like KSM), and they should be used more often to give those arrested the due process rights they deserve. There is no excuse for gathering up people and holding them without charge and trial. But, likewise, there is no excuse for trying to go beyond constitutional requirements because of past (and present) mistakes.
Remember, though some rights apply general to citizens and foreigner within the US the same (ex. Freedom of Speech), others do not (ex. Right to Vote). The US has violated many rights of individuals in Gitmo and beyond, but we are well within both the limits of the Constitution and prudence to try these terrorists at Gitmo or in the field (where it should really be done) by military tribunals. However, to swing to the other side and say that these enemy combatants should not be tried and should be rounded up as is the current practice: that is a moral and constitutionally indefensible position.
I would like to end with more clarification of my position. First, we should leave Cuba completely and close our Guantanamo Bay base. Cuba should be left sovereign over its land, and we should not be having an empire abroad. Second, just because I and Rand Paul hold to the same end position as some we are in great disagreement with, I assure you we get there by drastically different means. And I have little problem with terrorists being tried on US soil. My problem is with the claim that foreign terrorist share all the same privileges and immunities under the Constitution as US citizens and that military tribunals do not meet due process requirements; both are false charges.
Finally, let’s close Gitmo and stop violating constitutional and human rights. But let’s not trade bad policy for more bad policy.