There should be no third way.

There is absolutely no reason to create some newfangled and untested system to charge and try those few terrorism suspects whose legal fates present President Barack Obama with an excruciating political decision.

For years, the Bush administration told us that those held at the Guantanamo Bay prison camp were so evil that they could not be charged or tried in any U.S. or international court. But for almost as many years, the Bush administration released and repatriated the bulk of these men — more than 500 altogether. Though the Pentagon says some have returned to the terrorist cause, even the government claims only a few are still worrisome.

Now Obama has ordered that the Guantanamo prison be closed. His executive order contemplates three fates for the roughly 245 prisoners still held there. One is to continue releasing them, as the Bush administration has done. Another is to charge those whose cases can readily be handled in civilian courts through the federal criminal justice system.

And the third? Well, no one knows. The order says that those who aren’t released or charged in U.S. courts shall have their cases disposed of through “lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice.”

In the interest of justice, no third system should be created — because none is necessary.

Since the terrorist attacks of 9/11, the incessant refrain has been that some of those swept up and imprisoned during the so-called war on terror are so dangerous, their plots so potentially devastating, that they cannot be tried in civilian courts or in the U.S. military legal system. But this isn’t a legal statement; it’s a political one. It was concocted by the Bush administration to rationalize everything from its abandonment of the Geneva Conventions governing the treatment of wartime detainees to its use of torture and other abusive interrogation techniques.

The facts contradict this fiction.

In an exhaustive study of terrorism prosecutions conducted by two former federal prosecutors for Human Rights First, the outcome of cases brought against 257 individuals charged in U.S. courts with a wide range of terrorism offenses was clear: They were convicted and put away, many of them for life. Of the 160 defendants whose cases were finished between Sept.12, 2001, and Dec. 31, 2007, the overwhelming majority — 90 percent — were found guilty. Only about 9 percent of the cases were dismissed or ended in acquittal.

The study, released last year, didn’t include in its count the most successful terrorism prosecutions of all: the far-reaching cases that federal prosecutors in New York won during the 1990s.

In a series of spectacular trials, prosecutors convicted those charged in the first World Trade Center bombing and more. They put away terrorists who plotted to simultaneously blow up several U.S. jetliners flying over the Pacific. They broke up a sophisticated terrorist cell that had intended to unleash a day of horror in New York by bombing the United Nations building, the Lincoln and Holland tunnels, the George Washington Bridge and the main federal office building in Manhattan. In a trial that took place just before the 9/11 attacks, the government also convicted the conspirators who carried out the 1998 bombings of U.S. embassies in Africa.

In many of these cases, the very issues now argued as being too difficult to surmount were overcome. Evidence gathered through intelligence was used. Controversies over the way suspects were transported to the United States from abroad were resolved, as were questions about incriminating statements made to law enforcement personnel during these trips. As for the claim that we should thwart terrorists before they strike — not try them afterward — that, too, is answered, by the prosecutions that disrupted embryonic plots.

The terrorist who is too difficult to try is “an imaginary category,” says Shayana Kadidal, chief of the Guantanamo project at the Center for Constitutional Rights. Even among those who have been tortured, Kadidal says, there is a rare case — indeed, only a hypothetical one — in which there is no other evidence to be used.

Having now called for a more rational, humane and transparent way for the United States to treat those who would harm it, Obama must not make a political judgment that would muddy our moral standing once again.

Marie Cocco’s e-mail address is mariecocco(at)

© 2009, Washington Post Writers Group


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