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Don’t Label Accused New York Bomber ‘Enemy Combatant’

Real Justice Requires Due Process

Following last week’s bombing in New York City that wounded 31 people, some politicians are calling on US authorities to take the accused bomber, Ahmad Khan Rahami, out of the federal court system and instead treat him as a so-called “enemy combatant” This is the label the George W. Bush administration used to deny those apprehended in the “global war on terror” their basic rights, including to have a lawyer, to be informed of the charges against them, and even to be tried.

This September 2016 file photo provided by Union County Prosecutor's Office shows Ahmad Khan Rahami, who is in custody as a suspect in the weekend bombings in New York and New Jersey (Union County Prosecutor's Office)

Fortunately, the federal authorities have ignored these calls. The US Justice Department has filed criminal charges in both New York and New Jersey federal district courts and Attorney General Loretta Lynch has indicated that Rahami will soon be brought before a federal judge.

Providing even those accused of the worst crimes due process is a central tenet both of international human rights law and the US criminal justice system. The Universal Declaration of Human Rights provides that “everyone” charged with a penal offense has the right to due process protections. The Sixth Amendment to the US Constitution, on the rights of accused, applies “in all criminal prosecutions.”

But due process is important not only as a matter of principle, but also for the efficacy of the justice system. A country’s national security depends on it. The violation of rights after September 11, 2001, has denied the victims of the attacks, and the American people, real justice.

Instead of prosecuting those accused of the 9/11 attacks in federal court, the US has been prosecuting them in the highly dysfunctional military commissions system at Guantanamo Bay – a system created to circumvent US due process protections. As a result, the case is still in the pre-trial phase with a trial date years away. Three of the eight convictions obtained in the commissions have been overturned on appeal or otherwise invalidated. Several other decisions on appeal are outstanding. 

There is no reason to believe that holding Rahami as an “enemy combatant” will further intelligence gathering. Experienced interrogators attest that informing defendants about their right to a lawyer does not interfere with the ability to obtain useful information. In fact, defense attorneys often help convince their clients to cooperate in the hopes of obtaining a lesser sentence.

Holding several hundred people in indefinite detention at Guantanamo over the past 15 years, and the CIA’s torture program, which was facilitated by the lack of due process for those detained, became rallying cries around the world for those who would do the US harm.

Federal courts have proven more than capable of handling terrorism-related charges. Boston Marathon bomber Dzhokhar Tsarnaev, 9/11 co-conspirator Zacarias Moussaoui, and Faisal Shahzad, the 2010 “Times Square bomber,” have all been convicted in federal court.

The US public is rightly alarmed by this latest attack. But the answer does not lie in rejecting US rules that have roots in centuries of lessons and precedent. It lies in embracing them.

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