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Commissions System: End It, Don't Mend It

This column was written by New York State Senators Eric T. Schneiderman and Eric Adams, who chair the Codes Committee, which handles criminal justice issues, and the Homeland Security Committee, respectively.
Through symbolic and substantive action, President Obama deserves a great deal of credit for turning the page on some of the darkest moments of the past eight years.

On his second day in office, the President banned the use of torture in interrogations and announced plans to shut down the notorious prison center at Guantanamo Bay. It was no understatement when President Obama noted that day that his administration was sending a powerful message to the world that "the United States intends to prosecute the ongoing struggle against violence and terrorism in a manner that is consistent with our values and our ideals." However, Friday's decision to revive the Bush administration's deeply flawed military commission system to prosecute terror suspects threatens to undermine that admirable goal.

Established by President Bush in the months after 9/11, the military commissions have been beset by legal and ethical problems since day one. After being struck down by the Supreme Court, Congress pushed through the Military Commissions Act in 2006 with the expressed purpose of creating a tribunal system where convictions were easier to win than in federal courts. With loose procedural standards, the resulting commissions bore few similarities to our traditional courts; among other things, they allowed hearsay and evidence obtained through torture. Under the latest proposal, the reconfigured military commissions will limit this kind of flawed evidence and expand the legal rights of detainees. But why continue a system that bears the taint of the Bush-era tribunals with none of the prosecutorial advantages?

The time has come to end, not mend, the military commissions.

As legislators who represent victims of the 9/11 attacks, it has become increasingly clear that the only way to deliver justice is through legitimate proceedings in federal courts where constitutional protections apply. New Yorkers, and all Americans, expect fair trials that reflect our values and an outcome that can be trusted. There is no reason why these cases should be exempted from those principles.

Proponents of the military commissions claim otherwise, but the federal courts are fully equipped to prosecute complex terrorism cases without compromising national security. A comprehensive Human Rights First report, "In Pursuit of Justice," analyzed over 100 terrorism cases prosecuted in U.S. courts and found our justice system well suited to handle these cases, and more often than not, win convictions. The federal trials of the 1993 World Trade Center bombers, 1998 East African Embassy attackers and Zacharias Moussaoui are just a few notable examples. Each case ended in a conviction and lengthy prison sentence for those found guilty.

To suggest that prosecutors are hamstrung by procedural obstacles is simply untrue. Federal prosecutors have at their disposal a wide range of tools to go after terrorists, including statutes that criminalize assault, homicide and the use of weapons of mass destruction. Considering the breadth of these statutes and the length of time these suspects have been held in U.S. custody, it is difficult to believe there is no untainted, admissible evidence that can be used against them at trial.

In the seven years since President Bush first established the military commissions, only three terrorism suspects have been prosecuted, compared to nearly 150 in the federal courts. It isn't easy to start a judicial system from scratch - and we've learned that lesson the hard way. Like its two previous incarnations, a retooled system will almost certainly be the target of litigation, further delaying true justice for the victims of 9/11.

It is time to move on from this failed experiment. And while President Obama's proposal represents an improvement over the current military commission system, it's still no substitute for the U.S. federal courts.