The administration of U.S. President Barack Obama has abandoned plans to try several terrorists, including the alleged mastermind of the Sept. 11, 2001 attacks, in civilian courts. Instead, it will use military tribunals to administer justice. It is a sad decision. The United States should be leading efforts to show that the fight against terrorism does not require sacrificing the very values that the West is defending. Instead, the Obama administration has been forced by political realities to compromise its position; we all are poorer for the result.

The government of then U.S. President George W. Bush set up special military commissions to administer justice to terror suspects arrested in its global war on terror. The administration and its defenders insisted that a special legal system was needed because the circumstances in which suspects were arrested and held, as well as the crimes which they were accused of, could not be accommodated by standard criminal procedures. In particular, there was concern that the way those suspects were treated ― Khalid Sheikh Mohammed, the man who confessed to masterminding 9.11 was reportedly waterboarded 183 times; most people would call that torture, but that label was not used thanks to tortuous legal reasoning ― would invalidate their confessions or taint their trials.

Candidate Obama pledged to shut down the military tribunals, to end the special legal treatment that, even without making a mockery of civilian law, undermined the credibility of Western support for the rule of law, and to close the facilities at Guantanamo Bay where terror suspects are held in legal limbo. In November 2009, Eric Holder, the attorney general, announced that Khalid Sheikh Mohammed and four other men accused of organizing the Sept. 11 attacks would be tried in a civilian court just blocks from “Ground Zero” in New York City. Holder, with other administration officials, wanted to prove that the U.S. legal system could even handle crimes of this magnitude; a parallel legal system, one that did not afford defendants the protections of the U.S. Constitution, was not needed.

That brave and sensible decision triggered a firestorm of controversy. There were fears that the trials would become terrorist targets. Others worried that those fears and the security measures taken to counter them would exact a huge economic toll on New York City, which was in the grip of a severe economic downturn. (That argument convinced several people who originally supported the move.) Still others argued that legal technicalities would spring the terrorists. Opponents of the plan waged war in Congress and passed legislation that barred the transport of Guantanamo detainees to the mainland U.S. and banned the spending of any money on the trials.

Finally, on April 4, Holder angrily reversed course, saying that the civilian trials would not be held and the men would be charged in military commissions. Announcing the decision, Holder conceded that he was being forced to bow to political reality and the trials had to go forward to bring both justice to the perpetrators and some relief to the victims and their families.

But the attorney general insisted that civilian courts, “the time honored and time tested system of justice” are the better alternative as the cases against the accused were strong and could have been made in ordinary courts of law. Noting that legislators “simply do not have access to the evidence and other information necessary to make prosecution judgments,” Holder called the prosecutors’ case “one of the most well-researched and documented cases I have ever seen in my decades of experience as a prosecutor.”

Equally compelling is Holder’s claim that this parallel legal structure undermines counterterrorism efforts and hurts national security. The Guantanamo Bay facility is a rallying point for Muslim grievances against the U.S. Its very existence is a blot on a nation that has championed the rule of law. Experts insist that despite the precautions, the military commissions are riddled with constitutional and procedural concerns. But the bigger problem is the notion that certain classes of people need special legal systems ― that somehow the law cannot be applied to them. This does exceptional damage to the claim that all persons are equal before the law.

Supporters of the military commissions say these individuals create special problems and are in particular circumstances. That charge assumes that these people are guilty; in fact, they are still just suspects. There is no proof that they cannot be handled by the civilian courts. Others show concerns that they may have been mistreated and that confessions may have been forced and are therefore inadmissible. But they sidestep the critical question of why such methods were used and if the statements they produced are truthful.

In other words, the special courts protect the government, not the suspects. When put like that, the fundamental problems with such tribunals are clear. They are designed to tilt the scales of justice. They fail the basic fairness test and they repudiate the notions of human rights that have served as the model for Western jurisprudence. They are a poor compromise that use legal verdicts to erode the very foundation of Western jurisprudence.

(The Japan Times, April 19)