Aschroft: U.S. courts system inadequate for fight against terrorism 

The federal courts are not the place to try suspected terrorists, argued former U.S. attorney general John Aschcroft during a speech Wednesday in which he advocated separation between the military and judicial system, a policy he embraced as a member of the Bush administration.

Ashcroft stressed the need for a clearly defined code to determine what is appropriate in regards to the rights of detainees and argued that the judicial system has failed at providing this defined and consistent code through precedent. “The rule of law provides a set of boundaries in which people can make decisions with confidence,” he said.

Instead of relying on the judicial system, Ashcroft argued for the reliance on the executive branch and military agency when dealing with issues like military tribunals and detention centers.  Defending military tribunals, Ashcroft explained, “the rights of individuals are respected by our military; they’re the people who give their lives in order to defend those rights.”

Explaining the motivation behind detentions centers, Ashcroft said, “The idea of detaining people who fight against you is an act of mercy,” rather than a form of punishment. “The alternatives are either to kill them on the field or to re-arm them and send them back out to take another shot,” he explained.  When asked about his attitudes towards the Guantanamo Bay detention camp Ashcroft said, “I think ‘Gitmo’ is a very, very good place to detain people.  People are safe there.  People are treated humanely there."

In addition to the recent examples of judicial interference involving Guantanamo Bay, Ashcroft used examples from World War II, demonstrating what he said was the inconsistency of the judicial system in determining the rights of detainees.

The issue of federal courts versus military tribunals is at the forefront of the pending Maqaleh v. Gates case before the U.S. Supreme Court. Ashcroft predicted complications in that Obama's court nominee Elena Kagan has argued the government's case in favor of allowing military tribunals for some terrorist suspects without judicial interference. 

"It’s unlikely that she would be able to sit on this case,” Aschroft said, which could result in a split Court, allowing the military to detain unlawful enemy combatants at the Bagram Airfield Base in Afghanistan. 

“The best I believe we can hope for, in the defense of freedom,” Ashcroft said, “is that we have a majority decision which clarifies and brings certainty to this arena so that when the military of the United States encounters and seeks to detain individuals, there is a matrix in which decision making can be made with confidence.”

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