A federal judge has thrown out a majority of the evidence against a Guantanamo Bay detainee on the grounds that his confessions were coerced. US District Judge Thomas Hogan said the government failed to prove that 23 statements made to interrogators by Musa’ab Omar Al Madhwani weren’t forced. Luckily, Hogan ruled a few other statements as admissible and with other evidence decided that Al Madhwani trained with al-Qaeda and was legally being detained.
It turned out favorably in this instance, but the court case underscores the danger of taking a legalistic approach to what President Obama acknowledges is a war on terror. Bringing Khalid Sheik Mohammed and several others to New York City to stand trial will undoubtedly produce a circus as well as the possibility that a federal judge will rule that interrogations by CIA and military personnel are inadmissible in court, harming the government’s legal case against the enemy combatants.
It’s unlikely that Khalid Sheik Mohammed would be allowed to simply walk free (which begs the question of why hold supposedly “fair” trials in the first place if they’ll be nothing but show), but the real danger lies in the smaller fish like Al Madhwani allowed back into society because prosecutors lacked a strong enough legal position. This case shows that it can happen, although in this instance there were other factors that allowed Al Madhwani to remain incarcerated. Will that be the case with every other terrorist that stands before a judge?
It’s a central problem in treating the war on terror as a law enforcement operation. It is also a symptom of the politicizing of terror policy as the Obama administration seems intent on continually demonizing the “cruel” policies of the Bush administration and taking an opposite approach, no matter how ill-advised it might be.
Due process is an important and fundamental right for American citizens, but it’s not one that exists for an enemy that wears no uniform and hides as a civilian on a foreign battlefield and kills American soldiers. The argument is that the US must hold itself to a high standard of human rights (which is true), but terrorists have fewer legal rights under the Geneva Convention as they are neither members of a conventional army nor representatives of a particular nation. We don’t sacrifice our ideals when we do treat enemy combatants as battlefield enemies, and the terrorists don’t win if we fail to give them the same rights that American citizens are entitled to. If we are in a war as President Obama says, then we must continue to treat our enemies accordingly.