No Clear Distinction for How to Determine Who Gets Tried in Federal Court

President Obama established five categories of detainees in his May 21 National Archives speech and discussed creating or reforming different mechanisms for dealing with them, including trials in federal courts, military commissions and preventive detention. During today’s Senate Armed Services Committee hearing, Sen. Mel Martinez (R-Fla.) wanted to know, accordingly: how does the administration distinguish who gets tried in federal court and who gets tried in military commissions?

Defense Department General Counsel Jeh Johnson’s answer was, preliminarily, a shrug. “Where feasible we would seek to prosecute detainees in Article 3 [federal] courts,” he said. Feasible meaning what, exactly? It’s difficult to say, Johnson continues, saying that there are many in the detainee cohort that could be said to have violated both federal criminal law and the laws of war. Johnson said he and David Kris are working on creating some basis for distinction.

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