rssConsensus Forming on Prosecution of Guantanamo Detainees
Wednesday, April 29, 2009 at 12:48 pm
- 104 Comments
A Guantanamo detainee is escorted to his cell. (Wikimedia Commons)
On Wednesday evening during a trip to Berlin, Attorney General Eric Holder is expected to address the challenges of closing the prison at Guantanamo Bay and providing justice for the detainees still there. Whether President Barack Obama can safely return those prisoners to their home countries, resettle them elsewhere or try them in some sort of U.S. court is key to his ability to follow through on his promise to close the prison by the end of this year.
It’s also controversial. As Senate Minority Leader Mitch McConnell (R-Ky.) said in a statement released Tuesday: “Many Americans are skeptical of the Administration’s decision to close Guantanamo before it has a plan to deal with the 240 terrorists who are currently housed there. And Americans were rightly alarmed by recent news reports that the Administration is considering releasing some Guantanamo detainees into the U.S. — not to detention facilities, but directly into our neighborhoods.”
Illustration by: Matt Mahurin
McConnell was referring to Holder’s recent statements that he may release some of the Chinese Muslim “Uighur” detainees who’ve been cleared for release but are still at Guantanamo Bay into the Washington, D.C. area because they can’t be returned to China for fear of persecution, and no other country will take them. Of the 240 prisoners left at Guantanamo, about 50 have told their lawyers they’re afraid they will be tortured in their home countries if returned there.
That only concerns prisoners against whom there’s little evidence of wrongdoing. Although it’s clear now that most Guantanamo prisoners are not “the worst of the worst” as former Vice President Dick Cheney often described them, at least some were involved in terrorist activities, and the challenge for the United States now is where to try them for those crimes.
In an interview with Katie Couric of CBS News earlier this month, Holder suggested that all options remain on the table. “We will bring, I think, a substantial number of those people who we decide to charge in Article III courts,” Holder said, referring to the civilian federal court system. “Others might be taken to military courts. Others perhaps, to these military tribunals with some – enhanced – enforcement,” he said.
Although Holder signaled that the administration is still considering the creation of some sort of new court system to try suspected terrorists, a consensus is developing among legal experts that for the vast majority of them, the civilian federal court system — where terror suspects have traditionally been tried — is still the best way to go. A broad range of experts increasingly seem to agree that any new military commissions or “national security courts”, as they’re sometimes called, even if they could be set up quickly and provided detainees more rights than did the Bush military commissions, will always be viewed as suspect and subjected to protracted challenges in federal court. And while the military justice system used to prosecute U.S. soldiers could also be used to prosecute alleged war criminals, experts say it offers few advantages over the federal court system and many practical drawbacks.
“I think it would be much better to go into a federal court system,” said Gary Solis, a retired Marine and war crimes expert who teaches international and military law at Georgetown University, and spoke at a recent legal conference on the subject. “It could be done in the military, but I don’t think it should be.”
After the terrorist attacks on September 11, 2001, the Bush administration’s declaration of a “war on terror” changed the paradigm for dealing with terrorism. Instead of treating it as a law enforcement problem, which it always had been, it became a military one. That immediately changed — or discarded — the usual rules for how to treat suspects. As Judge Kenneth Karas, a federal judge in New York said earlier this month at a conference sponsored by the Center on Law and Security at New York University School of Law, “After 9-11, you didn’t have people sitting down with Miranda cards saying you have the right to remain silent. Because that’s the last thing the U.S. government wanted them to do,” he said. “So how will those cases be prosecuted?”
The problem for the Obama administration is that the suspects at Guantanamo Bay were arrested, interrogated and detained by the U.S. military and the CIA, not by the FBI, local police or federal prosecutors, who are trained to collect evidence in a way that will be admissible at trial. Evidence coerced under torture or other abuse — as described in recent Office of Legal Counsel and the Senate Armed Services Committee reports — is considered inherently unreliable and therefore inadmissible in federal court. Documents seized by the military or CIA agents, meanwhile, may not have been handled in a way that allows them to be reliably used against a defendant. And statements that soldiers or the CIA may have relied upon to capture a suspect may not be admissible in court, either, if they were based on hearsay or coerced from detainees during abusive interrogations.
That doesn’t necessarily mean we should create a new court system to get around that, argue many lawyers. “The best way to hide torture and other illegal conduct is to have a proceeding that hides some of the evidence,” said Joshua Dratel, a criminal defense lawyer who has represented detainees at Guantanamo Bay and is co-editor with Karen Greenberg of the 2005 book, “The Torture Papers: The Road to Abu Ghraib.” “The solution to a situation where there are difficulties is not to create a system that dilutes fundamental protections to the point where the court loses credibility altogether. That’s what happened at Guantanamo.”
Indeed, President Bush created the military commissions largely to get around the evidence problem. The Supreme Court struck down the first set of commissions in 2006 because they weren’t authorized by Congress and violated the Geneva Conventions. Congress passed the Military Commissions Act to solve that problem. The Supreme Court has never had an opportunity to decide if those commissions — put on hold in the early days of the Obama administration — are actually lawful. Lawyers who represented detainees tried before the commissions insisted that they were not.
Still, some prominent law professors, such as Georgetown University’s Neal Katyal, now deputy solicitor general in the Obama administration, have advocated for creation of special “national security courts”. Run by federal judges who specialize in terrorism cases, they would oversee “preventive detention” of suspects and would admit evidence that’s normally inadmissible in federal courts. Some suspects, for example, “can be tried only on a conspiracy theory that comes close to criminalizing group membership,” Katyal wrote in 2007 with Harvard Law Professor Jack Goldsmith, and “the standards of proof for evidence collected in Afghanistan might not meet every jot and tittle of American criminal law.”
But many experts say it would be a mistake for the Obama administration to create new courts now. “The Guantanamo military commissions for seven years have proven a failed and fruitless process,” Solis said. “I don’t think the international community is prepared to accept another military commission along the lines of what we had at Guantanamo Bay,” he said. “And any totally new system would be challenged just like the Military Commissions Act was.”
Kenneth Wainstein, a former federal prosecutor and homeland security adviser under President George W. Bush, acknowledged at the recent NYU conference that “as a former U.S. attorney, my bias is toward criminal prosecution, if it can be done.” He did, however, note the tension between the desire to protect classified information at trial and “the reality that in the world of counterterrorism you operate largely in a classified world.”
Many former federal prosecutors believe that world is adequately protected by current laws and procedural rules that allow judges to look at evidence behind closed doors, and allow the government to redact names of informants or to summarize critical evidence where its release in full could endanger national security. Indeed, a study of terrorism cases since 9-11 conducted for Human Rights First by former federal prosecutors concluded that the federal court system is well equipped to handle such cases. The ACLU and a bipartisan coalition created by the Constitution Project, along with many lawyers who have represented detainees at Guantanamo Bay, have also argued consistently that specially created national-security courts are unnecessary and likely unconstitutional.
What’s more, as Judge Karas noted, “The perception of our allies in the fairness of how we prosecute these cases is essential for their cooperation.” U.S. prosecutors will depend on that cooperation to obtain critical evidence, so creating a new court system “has very real practical implications.”
To the extent that the current court rules don’t accommodate some of the needs of prosecuting international terrorism, those rules could be amended without creating a whole new court system, legal experts say. Some have argued that Rule 15 of the Federal Rules of Criminal Procedure, for example, could be amended to make it easier to introduce deposition testimony in federal court when witnesses aren’t available.
“The questions about national security courts are complex, but the answer is simple,” Dratel said. “My answer is a categorical ‘no’. No one has yet articulated the failure of Article III Courts” to handle terrorism cases.
Although Dratel acknowledged that there could be “some tweaking in the rules,” the goal shouldn’t be to make getting convictions easy. “It’s not supposed to be easy to convict someone, to deprive them of liberty for a long time and in some cases to execute them.” The federal rules already protect classified evidence, he said, and in some cases don’t allow the defendant or even his lawyer to see that evidence. What’s more, “Confidential informants have been addressed for 40 years. It happens far more in drug cases then in terror cases. We’re not dealing with an uncharted future here,” he said, adding: “I’m skeptical of a system designed to protect evidence that will make it even more unfair.”
Of course, there’s still the military courts-martial system, whose rules are at least as stringent as those in civilian courts in terms of protecting defendants. President Obama has at times suggested that some suspects could be tried that way, since military courts have jurisdiction over war crimes. But the five-years statute of limitations on most crimes (except murder) will present a problem. “Most of these crimes, due to the length of time these folks have been held, the statute of limitations would have expired,” said Michelle McCluer, a former Judge Advocate General and executive director of the National Institute of Military Justice.
Even if the military courts could get around that problem, experts say most military lawyers, who ordinarily handle court-martials of soldiers, don’t have the sort of trial experience needed to try complex terrorism cases involving serious charges and classified evidence.
“There’s nobody in the military system who’s qualified to try these cases,” Solis said. “Not that they’re bad, just that they’re only a few years out of law school. ” Guantanamo detainees, meanwhile, “will have some of the best defense lawyers in the country,” he said, noting that some of the nation’s top lawyers rallied to defend them in habeas corpus cases and in the Bush military commissions.
If you pit skilled defense attorneys against military prosecutors with little trial experience, said Solis, who for years taught law at the U.S. Military Academy at West Point, it won’t go well for the United States. “We’ll get killed.”
104 Comments
Comment posted April 29, 2009 @ 11:02 am
Ain't the government great. It can not only forum shop, it can if it can't find a court it likes create a whole new court system.
Lets quit messing around. Lets just try them in civilian courts. The down side for the government is that the trial is public. Our press will print all the bad things we did to these people. Further the government will have to supply evidence and comply with the rules of the court.
That's a heavy burden for our government of law.
The upside is we will gain greatly in stature in the world and will stop the abuses that let Al Queda recruit more men. If we don't stop the torturing it would be easy to accuse the US of helping Al Queda recruit men while those men then kill our troops.
Comment posted April 29, 2009 @ 11:02 am
Ain't the government great. It can not only forum shop, it can if it can't find a court it likes create a whole new court system.
Lets quit messing around. Lets just try them in civilian courts. The down side for the government is that the trial is public. Our press will print all the bad things we did to these people. Further the government will have to supply evidence and comply with the rules of the court.
That's a heavy burden for our government of law.
The upside is we will gain greatly in stature in the world and will stop the abuses that let Al Queda recruit more men. If we don't stop the torturing it would be easy to accuse the US of helping Al Queda recruit men while those men then kill our troops.
Comment posted April 29, 2009 @ 11:17 am
another topic…David Duke KKK idiot was labled a RIGHT WINGER,,,If you dont respect god or Israel.and like to keep Blacks from success.Doest that make you a Democrat
Comment posted April 29, 2009 @ 2:10 pm
IN 1950 and earlier it did. Fortunately for this country's soul the racist right was forced to leave the Democratic party because of the efforts first to desegregate the military in the 1950s and finally by the 1964 Civil Rights Act, which the Republicans ran with in 1968 using the Southern Strategy. Especially under Reagan, the last Democrats with racist histories either recanted or quit the Democratic Party to join the Republicans. David Duke is really just a skinny Rush Limbaugh to my mind. And don't we capitalize God if we are referring to Him reverently? Turn off your radio and television and go get some books, even books on tape, many of which are free on the internet.
Comment posted April 29, 2009 @ 2:32 pm
i have never heard a racist statement come from Limbaugh.What are you talking about.I work with blacks.Im not racist.The only people talking about race are the left.That Gararfalo girl or whatever her name is.I hear the left use racism as any one who disagrees with this kooky socialistic agenga.Please reply.I dont want to argue,I just want to know how this Obama plan will help us,because my math says were in trouble.
Comment posted April 29, 2009 @ 2:44 pm
Why I don't like the stimulas plan.Universal health care does not work anywhere.I have searched and found are system the best.If everyone paid their own insurance prices would come WAY down.We would make more money per hour at our jobs also.Green Tech-global warming is bullshit.It can't be proven either way.However,it can be the next BS to sell to other countries,I just don/t think tax payers should pay for it.If obama would lower cap gains tax investers would step in.The market is always more effecient than government.I also like the FAIR TAX.Paying 23% on purchases only and keeping the fruits of my labor =Im a millionaire in 15 years.Paul Ryan tax plan looks good also 10% for people making under 100,000 and 25% on the rich.thats stimulas
Comment posted April 29, 2009 @ 2:53 pm
Seem like Big Business is Democrat.I think were in trouble.I see our standard of living being cut in halve.China and India are more capitalist now.This country is done for five years.
Comment posted April 30, 2009 @ 5:22 am
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Remove Post Block email Block IP address scared dem 1 minute ago 1 point
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Why have I not read an artical about that lame-ass press conference.13 Questions from 13 liberals (Thats Fair) Miss America was asked harder Questions than Obama.Nothing on that 320 thousand dollar photo shoot-Nothing on the GDP and Budget that will be off by a trillion dollars and 3% of GDP growth–Nothing on CAP and Trade that will crush poor people with energy costs.This is SICK.Obama is the GOP best friend.When this is done Democrats wil be out of favor more than Bush.If I am a democrat and I see this,just think what the republicans are thinking.
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Pingback posted May 1, 2009 @ 9:32 pm
[...] The Washington Independent, Daphne Evitar has an important article on the consensus forming on prosecutions of these detainees, at least some of whom may have been involved in terrorist activities, but for [...]
Pingback posted May 3, 2009 @ 12:53 pm
[...] Last week I wrote that legal experts across the political spectrum increasingly agree that civilian federal courts are the best place to try terror suspects — despite the potential difficulties created by tortured evidence. If the evidence is reliable, it will stand up in court; if it’s not, then it won’t and it shouldn’t. The rules are there for a reason. [...]
Pingback posted May 5, 2009 @ 2:30 am
[...] The Washington Independent » Consensus Forming on Prosecution of … [...]
Pingback posted May 5, 2009 @ 4:38 am
[...] The Washington Independent » Consensus Forming on Prosecution of … [...]
Pingback posted May 5, 2009 @ 6:33 am
[...] The Washington Independent » Consensus Forming on Prosecution of … [...]
Comment posted May 6, 2009 @ 10:47 am
First, any one that quotes Mitch McConnell needs a new source. The man is an intellectual vacuum.
Second, the only problems with using Federal Courts to try all these PRISONERS (“detainees”) are the rules of evidence and a reasonable requirement of impartial justice. If you say that they will divulge national secrets at trial that seems a little be far fetched considering how long they have been in prison.
Third, the military and I suspect the Administration want to use military tribunals to try all these folks because the evidence presented and the procedures will tolerate sloppy procedure, and a kangaroo court's idea of impartial justice.
One wonders when the government will ever learn. You can only fool the public for so long. Eventually at least some of the truth comes out.
Pingback posted May 6, 2009 @ 5:58 pm
[...] The Washington Independent » Consensus Forming on Prosecution of … [...]
Comment posted June 8, 2009 @ 4:25 pm
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Comment posted June 8, 2009 @ 4:39 pm
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Comment posted June 8, 2009 @ 11:25 pm
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Comment posted June 8, 2009 @ 11:39 pm
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Pingback posted July 24, 2009 @ 5:12 am
[...] cases prosecuted since the early 1990s. Once again, it concludes that the federal courts are fully capable of prosecuting complex and sensitive cases of international [...]
Comment posted August 24, 2009 @ 5:19 am
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Comment posted September 21, 2009 @ 9:48 am
This is cool! And so interested! Are u have more posts like this? Plese tell me, thanks
Pingback posted October 29, 2009 @ 9:51 am
[...] the purpose of military commissions is “military necessity.” Yet in this situation, as many legal experts have pointed out, it’s not at all clear that these commissions are [...]
Comment posted November 16, 2009 @ 7:48 pm
I don't know how i feel if they where to be released into the U.S. but i will like to be sure whom ever is set free among us is ready to deal with the repercussions of what they tried to do or did. where or not they are guilty.
Comment posted December 2, 2009 @ 8:05 am
It's a delicate issue, with no concrete answer.
Comment posted December 11, 2009 @ 2:46 pm
This is a very touchy subject. I am going to remain neutral but i will say that this article is very informative and well written.
Pingback posted December 15, 2009 @ 2:56 pm
[...] Legal experts have stressed the insufficient need for military commission in dealing with suspected terrorists, since federal courts have demonstrated ability enough to tackle complex terrorist cases (prosecuting 214 cases since 9/11) while preserving national security as well as the detainee’s right to a fair trial. Vincent Warren, executive director of the Center for Constitutional Rights further comments, These are now President Obama’s military commissions: he owns them and all the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason. [...]
Comment posted January 11, 2010 @ 6:47 am
Why I don't care for the stumulus plan.Universal health care isn't effective anywhere.I have searched and found our system the finest. If everybody paid their own insurance the costs would come right down
Pheobe.
Comment posted January 11, 2010 @ 11:47 am
Why I don't care for the stumulus plan.Universal health care isn't effective anywhere.I have searched and found our system the finest. If everybody paid their own insurance the costs would come right down
Pheobe.
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We could create a political influence justice system and call it “Modern Congress Commission”.
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Comment posted November 28, 2010 @ 5:09 am
even if they could be set up quickly and provided detainees more rights than did the Bush military commissions, will always be viewed as suspect and subjected to protracted challenges in federal court.
Comment posted November 30, 2010 @ 3:15 pm
McConnell was referring to Holder’s recent statements that he may release some of the Chinese Muslim “Uighur” detainees who’ve been cleared for release but are still at Guantanamo Bay into the Washington, D.C.
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