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Scholars and criminal justice practitioners are in agreement that the criminal justice system can and has been used as an effective tool in the fight against terrorism (Lafree & Hendrickson, 2007). An effective and prevention-focused response to terrorism, according to Hudson (2009), should encompass a pristine criminal justice element that is not only directed by a normative legal structure, but also embedded in the fundamental principles of the rule of law, due process and respect for human rights. However, some legal and administrative lapses found in the criminal justice system continue to pose immense challenges in the fight against terrorism. The present paper proposes to change one such legal and administrative lapse, known as detention without trial.
Following the September 11 2001 terrorist attacks on the United States, suspected terrorists continue to be captured from all over the world and exposed to indefinite detention without trial at Guantanamo Bay (Fenwick, 2002). Although a sizeable number of suspected terrorists have been released, many more continue to be held at the military prison with no charges preferred against them.
The reasons for the proposed change are many and varied. First, available literature demonstrates that capturing and detaining suspected terrorists without trial goes against one of the basic tenets of an effective criminal justice system, which is to try and prosecute offenders using criminal law and procedures (Hemming, 2010). Second, “…any form of detention without due process runs the risk of giving terrorists an additional argument to justify unlawful action and is also likely to increase support among those who have sympathy for extremist views” (Hemming, 2010 p. 956).
Third, suspected terrorists should be subjected to an effective and efficient criminal justice system as soon as it is practically possible to determine their culpability and possible conviction. Indeed, continuing to hold suspected terrorists without trial not only impinges on their constitutional liberties and human rights (Hudson, 2009), but also hinders the successful collection of intelligence data that becomes available upon examination of suspected offenders by prosecutorial agencies (Lafree & Hendrickson, 2007).
Exposing suspected terrorists to the criminal justice system rather than detaining them without trial has obvious positive results. First, the United States will demonstrate to the rest of the world that it respects human rights and constitutional liberties as enshrined in the Constitution. Second, it will assist in counter-terrorism measures by utilizing the intelligence collected from the suspects upon interrogation and examination by prosecutors in a court of law.
Such intelligence can be used by counter-terrorism agencies to construe the plans of other terrorists who are yet to be captured, thus taking proactive rather than reactive measures (Lafree & Hendrickson, 2007). Third, and perhaps most important, taking suspected terrorists to court rather than detaining them indefinitely will demonstrate to other potential fundamentalists that there counterparts were not subjected to oppressive treatment or discrimination, hence soften their extremist views (Hemming, 2010).
Resources must be availed for any change to be a success. In the case scenario, prosecutorial agencies need to be trained on interrogating terrorist suspects, and on collecting intelligence and information from the suspects. The country also needs to train more prosecutors and legal experts so that justice is disseminated to suspected terrorists who continue to be held at Guantanamo Bay without trial. Consequently, the proposed change will require human resources (prosecutors, judges, legal experts) and financial resources to meet training costs. The change needs approval from the Congress to close down Guantanamo Bay and bring all suspected terrorists held there to justice.
References
Fenwick, H. (2002). Responding to 11 September: Detention without trial under the anti-terrorism crime and security act 2001. Political Quarterly, 73(1), 80-104.
Hemming, S. (2010). The practical application of counter-terrorism legislation in England and Wales: A prosecutor’s perspective. International Affairs, 86(4), 955-969.
Hudson, B. (2009). Justice in a time of terror. British Journal of Criminology, 49(5), 702-717.
Lafree, G., & Hendrickson, J. (2007). Build a criminal justice policy for terrorism. Criminology & Public Policy, 6(4), 781-790.
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