| Prosecute Terrorist Suspects in Accordance with the Law |
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I. The ProblemOn November 14, 2001, President Bush rebuked existing Article III tribunals and signed a military order establishing extra-judicial military commissions for detainees accused of terrorist acts. This attempt to circumvent existing Article III courts resulted in a string of yet unresolved court challenges and has undermined America’s ability to effectively prosecute terrorist suspects. Prosecutions for terrorism offenses can and should be tried in existing U.S. courts pursuant to Article III of the United States Constitution .[1] President Obama and Congress should not repeat the mistakes of the past administration by attempting to create an entirely new system of preventive detention or National Security Courts. Federal courts are more than capable of prosecuting terrorists in our custody or those that are captured in the future. Moreover, after six years of legal battles over the failed attempts to prosecute a handful of terrorism suspects that now remain at Guantanamo Bay, the Obama administration should avoid the temptation to adopt seemingly “quick fixes” that will only exacerbate the problem. The only way to both obtain convictions of terrorism suspects and avoid the excessive confusion and legal challenges that would be inevitable in the creation of a new system is to prosecute detainees in federal courts. We should not lose sight of the important tools that we already have at our disposal, nor should we forget the costs and risks of departing from established institutions and practices. II. Proposed SolutionsA. Oppose all proposals to create National Security Courts. B. Immediately suspend all military commission proceedings at Guantanamo and terminate the existing Combatant Status Review Tribunals (“CSRTs”) and Administrative Review Boards. The military commissions established at Guantanamo lack necessary safeguards to ensure accuracy and fairness, are unconstitutional, and should no longer be used to try terrorism suspects. C. Repeal the MCA, rescind orders establishing military commissions, and adopt no future legislation attempting to interfere with independent judicial review of the legality of the Department of Defense’s indefinite detention or treatment of individuals in its custody. 1. Rescind President Bush’s Order of November 13, 2001 establishing military commissions. 2. Direct the Secretary of Defense to withdraw the March 21, 2002, “Military Commission Order No.1,” establishing procedures for trial by military commission. 3. Direct the Attorney General to withdraw the August 12, 2005 “Proposed Amendments to Military Commission order No. 1,” proposing certain amendments to the Secretary of Defense’s Military Commission Order No. 1. 4. Repeal the Military Commissions Act. D. The appropriate authorities should perform a case-by-case assessment for each detainee at Guantanamo Bay to determine which detainees can and should be charged for violations of U.S. law pursuant to federal criminal jurisdiction. Individuals for whom criminal charges are inappropriate should be either repatriated or, in the event repatriation is not possible, should be resettled in a third country or the United States. E. For cases subject to prosecution, direct the Attorney General to thoroughly review existing evidence for materiality, reliability and admissibility; canvass the federal criminal code to identify any offenses with which the detainee could be charged; and undertake any additional investigation as warranted. 1. Prosecute complex international terrorism cases in federal courts, relying on CIPA to protect sensitive intelligence sources. 2. Prosecutions should begin on a rolling basis once individual case reviews are completed. 3. The security clearance process for qualified federal and private defenders should be administered concurrently with the case review so as not to cause future delay in prosecution. F. Direct the Secretary of Defense to release and arrange for the immediate repatriation or resettlement of detainees upon either (a) acquittal or (b) completion of their sentences (including those already sentenced by military commission). III. Allies*Amnesty International USA
Bill of Rights Defense Committee (BORDC) Chip Pitts, President Common Cause Sarah Dufendach, Vice President for Legislative Affairs The Constitution Project Sharon Bradford Franklin Council on American-Islamic Relations (CAIR) Corey Saylor, National Legislative Director Defending Dissent Foundation Sue Udry, Director Essential Information John Richard or Robert Weissman Government Accountability Project Jesselyn Radack, Homeland Security Director International Justice Network, www.IJNetwork.org Tina Monshipour Foster, Executive Director, Liberty Coalition Michael D. Ostrolenk, Co-Founder/National Director National Association of Criminal Defense Lawyers (NACDL)** Michael W. Price ** NACDL strongly opposes national security courts and wants to see Guantanamo closed. Indeed, NACDL’s board has adopted the position that individuals accused of involvement with terrorist activity should be prosecuted in the federal criminal justice system; however, NACDL’s position differs from the proposed solutions included here in that it requires that individuals accused of violating the Laws of War as unprivileged belligerents be charged and prosecuted under the Uniform Code of Military Justice, consistent with the Geneva Conventions. National Institute for Military Justice (NIMJ) Michelle Lindo McCluer, Director National Litigation Project of the Lowenstein International Human Rights Clinic, Yale Law School Hope Metcalf Ramzi Kassem Physicians for Human Rights Sara B. Greenberg, JD, MALD sgreenberg(at)phrusa.org 202-728-5335 OpenTheGovernment.org Patrice McDermottpmcdermott(at)openthegovernment.org 202-332-6736 South Asian Americans Leading Together Priya Murthy Stanford Law School - Mills International Human Rights Clinic Barbara J. Olshansky, Leah Kaplan Visiting Professor and Clinic Director U.S. Bill of Rights Foundation Dane vonBreichenruchardt, President * These groups and individuals support the general principles expressed in the policy proposals described above. The allies listed do not necessarily endorse the specific language in every proposal, but they do agree that the proposals reflect the general principles that should govern policy in this area. Please contact the individuals and organizations listed in this section for more information. IV. Counter-Arguments and Rebuttal:A. Military commissions strengthen our ability to handle to complex terrorism cases, streamline adjudication, and fight the threat of international terrorism. The Military Commissions Act essentially replicates the Bush Administration’s approach to adjudicating terrorism charges, which the Supreme Court overturned in 2006. Riddled with procedures that significantly limit important rights of the accused, this separate system fails to meet minimum standards of due process or universal norms of criminal justice. Resting on tenuous legal footing and drawing nonstop criticism from the global community, the military commissions system undermines our national reputation where we should be the strongest, given our long tradition of dispensing justice even to our enemies. B. The criminal justice system is not capable of trying complex international terrorism cases or protecting sensitive national security information. Article III federal courts are time-tested institutions that have proven their ability to try terrorist and enemy combatant cases, respectively, in a manner consistent with constitutional strictures. Federal courts offer finality, transparency, legitimacy, and due process. Specially tailored federal anti-terrorism laws and other generally applicable federal criminal statutes (e.g., Foreign Intelligence Surveillance Act (FISA) and the Classified Information Procedure Act (CIPA)) provide an adequate basis to detain and monitor suspects and offer a broader spectrum of prosecutable conduct than the military commissions. Military commissions may exercise jurisdiction only over persons properly subject to jurisdiction under the laws of war and only for crimes traditionally recognized by the laws of war. Thus, the tools required for successful prosecution of terror suspects currently exist and are already at our disposal.[2] C. National security courts represent a hybrid approach between criminal justice and military law that is fair, efficient, and reflective of core American values. 1. Specialized terrorism courts would create an unequal system of justice for individuals accused of terrorism, presupposing their guilt by placing them in a specialized system designed to try individuals believed to be terrorists. Thus, national security courts would perpetuate the current flawed system of ad hoc justice created by the Bush administration to prosecute terrorism. 2. The administrative cost of creating this new and separate system of justice would only lead to further delay and confusion. Just as current “enemy combatants” have challenged their status in habeas proceedings before regular Article III courts, any prosecution in specialized courts would be vulnerable to jurisdictional attacks that challenge the initial classification of a suspect. These line-drawing questions could take years of litigation to resolve, a result that serves neither the accused nor the U.S. need for swift and credible justice. 3. Any new system would be at odds with fundamental American values of liberty, equality, due process, and impartial justice. Those shortcomings—whether real or perceived—would have significant costs to our national security. A “separate but less equal” approach to terrorism prosecutions would also be counterproductive in combating terrorism because it threatens to alienate communities, undermines the work of domestic law enforcement; and weakens our ability to promote rule of law abroad by alienating our allies. V. Recommended Documents for Further Informationa. Constitution Project, A Critique of “National Security Courts,” June 23, 2008, available at http://www.constitutionproject.org/pdf/Critique_of_the_National_Security_Courts1.pdf b. Michael Louis Corrado, Sex Offenders, Unlawful Combatants, and Preventive Detention c. John C. Coughenour, Op-Ed, How to Try a Terrorist, N.Y. Times, Nov. 1, 2007, available at, http://www.nytimes.com/2007/11/01/opinion/01coughenour.html?n=Top/Reference/Times%20Topics/Subjects/D/Detainees See also John C. Coughenour, Op-Ed., The Right Place to Try Terrorism Cases, Wash. Post, July 27, 2008, Page B7, available at: http://www.washingtonpost.com/wp-dyn/content/article/2008/07/25/AR2008072502759.html d. Lt. Col. Gordon Cucullu, After Gitmo, FrontPageMagazine.com, Sept. 24, 2008, http://frontpagemag.com/Articles/Read.aspx?GUID=6BAD87FA-837B-4B77-A43E-482BE3727172 e. Ramzi Kassem, Testimony, Senate Committee on the Judiciary, July 16, 2008 f. Harold Hongju Koh, Testimony, Senate Subcommittee on the Constitution, Committee on the Judiciary, September 16, 2008 g. Sarah E. Mendelson, Closing Guantanamo: From Bumper Sticker to Blueprint, Center for Strategic and International Studies, September 2008, available at www.csis.org/media/csis/pubs/080905_mendelson_guantanamo_web.pdf h. Kelly Anne Moore, Take Al-Qaeda to Court, N.Y. Times, Aug. 21, 2007, available at, http://www.nytimes.com/2007/08/21/opinion/21moore.html i. Scholars’ Statement of Principles for a New President on U.S. Detention Policy: An Agenda for Change, Testimony, Senate Subcommittee on the Constitution, Committee on the Judiciary, September 16, 2008, available at http://law.fordham.edu/documents/cr-ilciScholar.pdf j. Richard B. Zabel and James J. Benjamin, Jr., In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, Human Rights First, May 2008, available at http://www.humanrightsfirst.org/us_law/prosecute/ k. Physicians for Human Rights, Broken Laws, Broken Lives: Medical Evidence of Torture by US Personnel and Its Impact, June 2008, available at http://brokenlives.info l. Fighting Terrorism Fairly and Effectively: Recommendations for President-Elect Barack Obama http://hrw.org/reports/2008/us1108/ m. Testimony of Jesselyn A. Radack, Improving Detainee Policy: Handling Terrorism Detainees within the American Justice System: Hearing Before the S. Comm. on the Judiciary, 110th Cong. 132-35 (June 4, 2008) available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_senate_hearings&docid=f:43658.pdf n. The Constitution Project, A Critique of National Security Courts, available at http://www.constitutionproject.org/pdf/Critique_of_the_National_Security_Courts1.pdf o. Stephen J. Schulhofer, Prosecuting Suspected Terrorists: The Role of the Civilian Courts (2008), available at http://www.acslaw.org/files/Prosecuting-Suspected-Terrorists.pdf
[1] Furthermore, in future armed conflicts, enemy combatants captured on the battlefield who are subject to traditional military jurisdiction can be tried under the laws of war in properly constituted military courts. It is imprudent and unnecessary to create specialized courts or commissions for this purpose. [2] Human Rights First, How to Close Guantanamo Blueprint for the Next U.S. Administration, August 2008; Richard B. Zabel and James J. Benjamin, Jr., In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, Human Rights First, May 2008 (demonstrating that existing federal courts have skillfully adjudicated over 120 international terrorism cases in the past fifteen years without sacrificing either national security or due process for the accused). |