I was swimming at Girl Scout Beach on Guantanamo Bay after another full day of testimony in the hearing of Omar Khadr. He was the fifteen year-old Canadian seized by American forces in Khost, Afghanistan for allegedly throwing a grenade that killed an American soldier. The Caribbean waves that melted into the horizon reminded me of our obligation to get it right–legally, politically, and morally–precisely because of the profound expanse before me.
After 9/11, the world united behind America. We all wanted to see those who committed the atrocities brought to justice. After an initial assault on the Taliban, and the supporters of Osama Bin Laden, though, we quickly lost our way.
The Bush administration tried to cover its tracks by arguing that detainees should be tried under new military commissions, with new rules of evidence, and new rules of procedure. These rules have never even passed the sniff test of legitimacy because they violate many of the basic precepts of due process.
President Obama has rectified some of the problems. He issued Executive Orders promising to close Guantanamo and end torture. Yet, the Obama administration acceded to the continuation of military commissions in some cases, like that of Omar Khadr. It remains unclear whether he will succeed in closing Guantanamo.
Khadr has spent a third of his life now at Guantanamo. He arrived when he was fifteen; he is now twenty-three. He has not had a speedy trial by any standard. Today, we are hearing arguments about whether statements obtained through torture are admissible at trial. It is so Kafkaesque to see this young man, who enters the courtroom as placid as the sea outside his reach, sit smiling, as a Lieutenant Colonel pleads his case.
As I sit on the shores at Girl Scout Beach, I feel too the ripple effects of the attempted bombing in Times Square this week trying to reach these shores. I worry that I will see plane loads of more criminals, alleged and real, sent here.
Rep. McKeon has said he will introduce amendments to the House National Defense Authorization bill to prohibit the administration from trying the 9/11 defendants in civilian courts, even though our federal courts have convicted 400 terrorists since 9/11 and the commissions have tried only three.
Senator Lieberman even went so far Tuesday as to suggest that we strip Americans of their citizenship–strip Americans of their citizenship!!!–if they are suspected of engaging in acts of terror so that we can deprive them of the constitutional guarantees of due process we afford all Americans, even the most notorious.
If we are to get it right–legally, politically, and morally–we must end the politics of fear and return to reason. We must let our Constitution work without interference. We must embrace our federal courts rather than create new justice systems that will be bogged down with constitutional challenges for years to come. Let’s embrace the Girl Scout’s motto to "be prepared," because we already are.