The idea that every person deserves his or her "day in court" is a fundamental principle in the United States and many countries worldwide. Yet more than nine years after 9/11, the United States remains paralyzed not just about how to give the thousands of detainees in U.S. custody around the world their day in court but about whether to give them that day in court.
Multiple judicial forums have been created to try nonstate actors who have perpetrated war crimes from Rwanda to Sierra Leone to Cambodia to the former Yugoslavia — to give them their day in court. That makes the failure to answer this question for post-9/11 detainees particularly perplexing and deeply troubling.
Two successive administrations have been incapable of answering what should be the most basic questions: if, how and where to try terrorists. In the meantime, post-9/11 detainees languish in indefinite detention. The result is a fundamental and overwhelming violation of the rights of individuals who are no more than suspects, in either past or (more problematic) future acts.
The Obama administration now intends to issue an executive order establishing indefinite detention without trial for detainees at Guantanamo Bay. This decision will formalize this violation of basic rights. Denying individual accountability will now be official U.S. policy and law.
The claim that granting prisoners the right to file petitions for habeas corpus and receive regular reviews is sufficient is disingenuous. At best, that only addresses detention status. It does not facilitate resolution of individual accountability, the principle that requires that an individual have the opportunity for adjudication of his or her guilt or innocence. It is wrong morally, not to mention legally.
The first step, therefore, is to determine that individuals detained post 9/11 deserve their day in court, just like domestic criminals and perpetrators of war crimes. The next step is to implement a mechanism that can do so fairly and effectively. Speedy resolution is, by now, wishful thinking at best.
Unfortunately, for the last nine years, the U.S. has skipped the first step and has let narrow political considerations devoid of morality, legality and decency determine the nature of the second step. Decision-makers talk of constitutional law and a "beacon on the hill," but acting on that talk seems to present overwhelming challenges. Principles have been discarded in the name of expediency.
Just as crimes grant the state the power to punish, so the state owes the detainees a duty of resolution, a duty to give them their day in court and either prosecute or release, convict or acquit. In the absence of an effective framework to do so, the state is engaging in unconscionable behavior — with an immunity largely granted by Congress and courts alike. Supreme Court and congressional acquiescence in the face of executive power has historically ill-served the American people.
Those who argue that indefinite detention accords with the treatment of prisoners of war gloss over two key distinctions: POWs are held in protective custody and released at the end of hostilities, whereas post-9/11 detainees are held in de facto punitive detention and terrorism has no end to trigger release. Those who want to argue that we are at war with Al Qaeda and other terrorists fail to consider that the law of war and principles of morality in armed conflict do not countenance such an approach, where detainees face the prospect of generational, even lifetime, detention without charge or trial.
Indefinite detention completely undermines the basic notion of individual accountability, thus constituting a fundamental miscarriage of justice. The United States, uncertain whether the detainees are criminals or more akin to fighters in an armed conflict, must still grant them the basic right to a day in court. Without that, individual accountability is simply eliminated, effectively saying that the adjudication of individual liability is burdensome, perhaps even irrelevant.
This is not the American way; rather, it is a repudiation of American values. Whether one supports criminal trials or the creation of a national security court, the time has come to decide and adjudicate.
Amos N. Guiora, a professor of law at the University of Utah's S.J. Quinney College of Law, is the author of "Freedom from Religion: Rights and National Security." Laurie R. Blank, director of the International Humanitarian Law Clinic at Emory University School of Law, is the co-author of "Law of War Training: Resources for Military and Civilian Leaders."