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St. Thomas Law Review

First Page

155

Document Type

Article

Abstract

This Essay will show that the creation of an exceptional ad hoc court for the purpose of trying suspected terrorists in the United States would be a misguided approach to solving the problem of the military commissions. It will also demonstrate that, in a society based on the rule of law, the justice which President Bush seeks for terrorists must include proper treatment in detention and fair trials. The regular criminal justice process in the federal courts has served and can continue to serve as an adequate, efficient, and fair method to bring terrorists to justice. Moreover, the exclusionary rule doctrine available to defendants in criminal courts may provide due process protections and curb torturous interrogation practices. Part II presents three of the problems the United States currently faces in its quest to bring suspected terrorists to justice. First, the military commissions, the current regime for trying detainees at Guantdnamo, has failed. It will describe the military commissions' regime as it currently operates, or rather, as it would operate if it ever reconvenes. Because detainee litigation and subsequent remedial legislation have affected the operations of the military commissions, this Part discusses the relevant Supreme Court cases and also describes the relevant provisions of the Detainee Treatment Act of 2005 ("DTA") and the Military Commissions Act of 2006 ("MCA"). Second, the ad hoc court, which some propose as an alternative to the military commissions, will not be seen as fair or legitimate. In part, this is because the ad hoc court likely would admit evidence obtained through torturous interrogation practices. Third, and finally, the torture of terror suspects by agents of the United States creates perverse incentives to dispose of suspects by killing them, consequently making them unavailable to stand trial in any venue. Part III will show that the military commission scheme is deeply flawed, and the creation of an ad hoc court to try suspected terrorists will not provide the remedies sought, efficient, fair trials for the accused, and a legitimate system for preventative detention. Only regularly-constituted criminal courts, such as the federal district courts, can provide due process protections for the accused. Finally, this Essay will conclude that justice and fairness demand individuals accused of terrorism crimes must be treated as criminals and tried in regular criminal courts.

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