The mixed verdict in the case of the first Guantánamo detainee to be tried in a civilian court on Wednesday quickly re-ignited a fierce debate over the Obama administration’s effort to restore the role of the traditional criminal justice system in handling terrorism prosecutions.
Ahmed Ghailani will face between 20 years and life in prison as a result of his conviction on one charge related to the 1998 embassy bombings in Africa. But because a jury acquitted him on more than 280 other charges — including every count of murder — critics of the Obama administration’s strategy on detainees said the verdict proved that civilian courts could not be trusted to handle the prosecution of Al Qaeda terrorists.
“This is a tragic wake-up call to the Obama Administration to immediately abandon its ill-advised plan to try Guantánamo terrorists” in federal civilian courts, said Representative Peter King, Republican of New York. “We must treat them as wartime enemies and try them in military commissions at Guantánamo.”
One of the major problems that shows its head here is that just war theory, in which the U.S. bases the morality of it’s actions, is completely at a loss when it comes to terrorism and what to do with those terrorists who ‘surrender.’ JWT is based on the assumption that combatants will wear uniforms of the country they represent. This is in the part of the theory where one must distinguish between civilians and the military. There are different rights between the two because a by taking up arms, a military person has forfeited his/her right to not be killed. A civilian has not done this. When a person refuses to wear a uniform and still picks up a weapon in a weird way they are neither a civilian nor part of a military. On top of all of this, terrorism by its very nature intrinsically violates almost every part of the just war theory and goes towards a ‘win at any costs’ mentality. So we have a problem when we have the question ‘what do we do with the terrorist?’
Treat them as pirates. Give them a military trial and execute them if found guilty. Either that, or treat them as war criminals for having taken up arms without a uniform or military structure and give them a military trial and execute them if they are found guilty. Terrorists are war criminals and deserve the fate of war criminals. In fact, a general order to not take them prisoner in the field, but summarily execute them for their war crimes would be appropriate in my opinion.
I’m in complete agreement with your final recommendation. Same should apply to pirates.