The attempted Christmas Day bombing of an airplane headed to Detroit was a stark reminder of the threat to America posed by terrorism, and it is a real threat. But since then, Americans have also been reminded of another threat: the danger of surrendering our American values and constitutional principles in the fight against terrorism. Our country’s founders conferred upon the government the power to protect us from our enemies and to prosecute and detain those who violate our laws, but they also drew an important line: Those efforts must be conducted within the boundaries of the Constitution. As former federal law enforcement officials — an FBI special agent, and a U.S. attorney and later Assistant Attorney General for the Criminal Division at the Department of Justice — we swore to uphold the Constitution and protect the American people in carrying out our duties. We believe that, in waging the fight against terrorism, we must hold the line and refuse to surrender this country’s strong commitment to the rule of law.
The Obama administration’s decision to try suspected Christmas Day bomber Umar Farouk Abdulmutallab in federal court, rather than by military commission, was the right decision. It is time for opponents of trying terrorism suspects in our time-tested federal courts to recognize that the military commissions have failed — failed to provide justice to victims of Sept. 11 and other terrorist attacks, as well as to those held at the Guantanamo detention facility.
Our traditional federal courts have been proven to be far more effective in processing terrorism cases than the military commissions established at Guantanamo. Since 2001, almost 200 terrorism suspects have been convicted through our federal court system, compared to only three convictions of low-level terrorists through the Guantanamo commissions. Just last month, a federal appeals court upheld the conviction and life sentence of Zacarias Moussaoui for his involvement in the Sept. 11 attacks. Renewal of military commissions for a third time has ensured endless litigation, because they remain vulnerable to constitutional challenge. In contrast, the constitutional validity of our traditional federal courts has never been in question.
As former law enforcement officials, we understand the importance of gathering intelligence, which enables us to effectively prevent violent acts and thus protect the American people. We know how well-trained and effective our criminal law enforcement officials are at carrying out this vital task. Case in point: Abdulmutallab has already talked, and it is expected that he will continue to do so. Personal experience with older, hardened jihadists, who pledged their allegiance to Osama bin Laden in person, has demonstrated that tactics such as plea bargains and rapport-building are effective means of attaining information. We reject arguments that information can only be obtained if such suspects are held and interrogated by the military. We also find extremely disturbing the implication underlying this assertion — that military interrogations will be more “effective” at making suspects talk by using so-called enhanced interrogation techniques — and that it is somehow consistent with our values and constitutional principles to subject persons to abusive forms of interrogation. It is not.
Those advocating Abdulmutallab’s indefinite detention without charge and/or trial by military commission are simply extending the policies employed at Guantanamo to the homeland. The president’s commitment to close Guantanamo should be applauded and supported, not for closure’s sake but for what closure achieves — an end to the policies that have made America less safe, weakened our international alliances, harmed our hard-earned international reputation as a country committed to the rule of law, and undermined our American values.
We believe there is a better way to make America secure while abiding by our constitutional principles. We therefore joined a coalition of over 130 former diplomats, military officials, federal judges and prosecutors, and members of Congress, as well as bar leaders, national security and foreign policy experts, and family members of victims of the 9/11 terrorist attacks in issuing "Beyond Guantanamo: A Bipartisan Declaration." Organized by the Constitution Project and Human Rights First, the Declaration sets forth principles for dealing with terrorism suspects upon the closing of Guantanamo, namely trying terrorism suspects in regular federal courts rather than by military commission and rejecting indefinite detention without charge.
Proponents of displacing our fundamental principles, systems and institutions have surrendered to the terrorists and, in the process, have undermined American values that generations have fought and died to uphold. Americans should hold the line wisely drawn by our Constitution and support the very values that have made America great. This is the most effective way to keep America safe and to demonstrate to the world that we do not intend to allow terrorists to erode the core values that have made this country exceptional in the history of the world.
Cloonan is a former special agent with the FBI's New York field office (1976-2002). Robinson is a former U.S. attorney for the Eastern District of Michigan (1977-1980) and Assistant Attorney General, Criminal Division, for the U.S. Department of Justice (1998-2001).