The ABA maintains that it is time to adopt a more flexible and commonsense approach with regard to detainee transfers from Guantanamo Bay, Cuba, and urged the Senate this month to include provisions in the FY 2014 National Defense Authorization Act that would permit the transfer of detainees to the United States for trial and clarify requirements for transfers to different countries.
ABA President James R. Silkenat wrote in a Nov. 18 letter to all senators that the ABA supports Sections 1031 and 1033 of S. 1197, the defense authorization bill that reached the Senate floor Nov. 18 for consideration after approval by the Senate Armed Services Committee.
Section 1031 addresses the requirements for transfer or release of Guantanamo detainees to their countries of origin or to another country other than the United States. Silkenat focused his letter primarily on the provisions in Section 1033, which would amend the blanket restriction in effect since 2010 that forecloses civilian court prosecutions of Guantanamo detainees by prohibiting the use of Department of Defense (DoD) funds to transfer detainees to the United States for any purpose. The new provisions would allow the secretary of Defense to waive the prohibition if it is determined that:
·such a transfer is in the national security interest of the United States;
·appropriate actions have been taken, or will be taken, to address any risk to public safety that could arise in connection with the detention and trial in the United States; and
·appropriate committees of Congress are notified not later than 30 days before the date of the proposed transfer.
Silkenat emphasized that the federal courts are “well equipped to handle terrorism trials, no matter how complex,” and that it is “in our national interest to permit determination regarding the best venue for prosecuting alleged terrorists detained at Guantanamo Bay to be made on a case-by-case basis.”
Silkenat explained that only seven of the 779 detainees who have been held at Guantanamo Bay since 9/11 have been convicted by military commissions. Five of those convictions were a result of plea bargains, and two convictions were vacated because the crimes with which they were charged were codified as war crimes after the defendants allegedly committed them. In addition, none of the crimes are recognized as violating the international law of war. One of those convictions has been reinstated pending a decision by the Court of Appeals of the D.C. Circuit.
Even though military commissions have been existence for 12 years, litigation over access to counsel and breaches of the attorney-client privilege, in addition to uncertainty over rules governing procedural matters, continue to mire down proceedings and contribute to delays in moving forward with trials.
By contrast, Silkenat pointed out, more than 400 individuals have been prosecuted and convicted of jihadist terrorism-related crimes in the federal courts. He said that these prosecutions have resulted in convictions with life sentences and, according to numerous accounts, also have generated valuable intelligence about the United States’ enemies.
“Our Article III federal courts, praised around the world, have successfully handled the prosecution of hundreds of terrorists, many of whom were convicted of material support offenses. They are an established and respected tool in upholding the rule of law and bringing terrorists to justice,” Silkenat said.
He emphasized that the ABA recognizes that not all terrorism cases can or should be prosecuted in federal courts, but the association firmly believes that those responsible for national security should retain the option of prosecuting in Article III courts if doing so is in the national security interest of the United States.
During Senate debate on S. 1197 on Nov. 19, the Senate failed to garner the votes to pass two proposed amendments to gut the detainee provisions. Deliberations on the authorization bill are expected to continue when the Senate returns from its Thanksgiving recess in early December.