Embracing justice, humanity

In a Dec. 12 editorial, the Review-Journal argued that Guantanamo Bay detainees must remain there and be dealt with outside the framework of the American legal system because these prisoners otherwise would insist upon the "excesses" of competent defense counsel, speedy trials and due process.

This editorial not only included factual inaccuracies and departed from important constitutional values, it was also oddly inconsistent with the newspaper's libertarian worldview that typically looks at government expansion of power with a critical eye.

The Review-Journal editorial disappointingly parroted the present administration's claim that the prisoners at Guantanamo are the "worst of the worst," a group of criminal terrorist masterminds whose evil cannot be contained or judged by any civilian court.

But this is simply wrong. A full 80 percent of prisoners at Guantanamo were handed over to coalition forces by private Afghani or Pakistani citizens who received monetary rewards for each "terrorist" they turned in. One-third of all prisoners held at the camp have been released without charges after no evidence against them could be produced.

In the wake of the panic caused by the threat of terrorism, and given the suspect circumstances under which many prisoners arrived at Guantanamo, continuing to compromise the core principles upon which our justice system rests would be unwise. The checks on government power that are provided when we afford these detainees proper due process are more, not less, imperative than ever if we are going to remain true to ourselves and maintain our moral stature in the world. That's what our Founding Fathers did when they insisted on full due process after the Revolutionary War for the British soldiers who fought against our independence, and that's what should be done now with the Guantanamo detainees.

The time-tested U.S. military and civilian courts are perfectly equipped to handle complex national security cases. The United States has captured and successfully prosecuted scores of terrorism suspects, at home and abroad, both before and after the attacks of Sept. 11, 2001. Federal prosecutors have an imposing array of prosecutorial tools for targeting and trying suspected terrorists, including statutes that criminalize assault and homicide, the use of weapons of mass destruction and harboring or concealing terrorists. With this prosecutorial arsenal, there is little question that the appropriate venue for detainee trials is our civilian court system.

Indeed, closing Guantanamo was one of the few points of agreement between the two major parties' presidential candidates this year. And the list of respected military leaders and public officials of all political stripes who have demanded the system be shut down continues to expand. Among many others, Colin Powell, Hillary Clinton and Henry Kissinger all share this view. Those leaders understand that the Guantanamo prison has made America less safe by alienating our allies and instigating our enemies, and that America's strength and security have always depended as much on moral authority as on military might.

With the election now behind us, the question for President-elect Obama is what to do with the nearly 250 individuals who have not been charged. These detainees are still being held by our government, some for more than seven years. During the presidential campaign, the president-elect repeatedly stated that he would shut down the Guantanamo Bay prison camp and end the military commissions. On Day One of his presidency, that's exactly what he should do.

The Obama administration's new Justice Department must conduct a comprehensive review of all detainee records to determine whether there is legitimate evidence of criminal activity.

Where there is not, detainees should be repatriated to their home countries or, if there is a risk of torture or abuse by their own government, transferred to countries that will accept them.

The United States must return to its established system of justice for detaining and prosecuting suspects, a system that embodies the values and principles that are the bedrock of our constitutional democracy. The creation of any other ad-hoc, illegal detention system or "third way" that permits the executive branch to suspend the rule of law and hold suspected terrorists without charge or trial will not eliminate the blight of Guantanamo, but will simply move its stain on-shore.

The next president has a chance to restore America's credibility by reaffirming its commitment to core principles even in -- no, especially in -- these most challenging times. He can do so by prosecuting the Guantanamo detainees in U.S. courts that guarantee that justice will be done in proper American fashion. It is time for our nation to stop betraying its own values in a misguided and ineffective effort to enhance safety at the expense of the very constitutional safeguards that make our democracy worth fighting for in the first place.

Caroline Fredrickson is director of the American Civil Liberties Union's Washington Legislative Office. Gary Peck is executive director of the ACLU of Nevada.