MILITARY COMMISSIONS: U.S. Attorney General Eric H. Holder Jr. has referred the case of Khalid Sheikh Mohammed and four other individuals accused in the 9/11 terrorism attacks to the Department of Defense to proceed in military commissions to be held at Guantanamo Bay, Cuba. The decision reversed the Justice Department’s earlier plans to bring the alleged terrorists to trial in federal district court in New York. Holder said he made the decision in light of restrictions put in place by Congress that block the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue. Calling the restrictions “unwise and unwarranted,” Holder emphasized that the decisions about where and how to prosecute have always been – and must remain – the responsibility of the executive branch. “Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments,” he said, vowing to continue to seek repeal of the restrictions. He expressed confidence in the federal courts, saying that “there is no other tool that has demonstrated the ability to both incapacitate terrorists and collect intelligence from them over such a diverse range of circumstances as our traditional justice system.” Nevertheless, Holder said that prosecutors from both the Departments of Defense and Justice have been working together and he had full faith and confidence in the military commission system to appropriately handle this case as it proceeds. The ABA, in policy adopted in 2009, vigorously supports prosecution in Article III courts of detainees charged with criminal violations, unless the attorney general certifies that prosecution cannot take place before such courts.
NATIVE HAWAIIANS: The Senate Indian Affairs Committee approved an ABA-supported bill April 7 that would allow indigenous Hawaiian people to choose a political framework that could be recognized by the U.S government and serve their unique cultural and civil needs, including advocacy on their behalf on the federal and state levels. Sen. Daniel K Akaka (D-Hawaii), who is retiring after this Congress, has sponsored the bill every Congress for the past 10 years and, although it has passed the House, the bill has consistently stalled in the Senate. “The United States has federally recognized government-to-government relationships with 565 tribes across our country,” he noted when introducing the bill March 30. “It is time to extend this policy to the Native Hawaiians.” Akaka explained that the bill is the next step in the reconciliation process that was supported in the Apology Resolution signed into law in 1993 by President Clinton. The resolution apologized for the involvement of U.S. agents in the overthrow of the Hawaiian government in 1893 and committed the United States to support reconciliation efforts between the United States and the Native Hawaiian people. The ABA has supported the legislation since 2006, emphasizing that the framers of the Constitution, through the Indian Commerce Clause and the Treaty Clause, empowered Congress to maintain relations between the federal government and governments of indigenous people. In addition, the U.S. courts have ruled that this power includes re-recognizing nations whose recognition has been terminated in the past. There has been no action on identical legislation, H.R. 1250, sponsored by Rep. Mazie K. Hirono (D-Hawaii).
HAITIAN REMOVALS: The ABA urged U.S. Immigration and Customs Enforcement (ICE) to halt deportations from the United States of Haitian nationals until further infrastructure has been developed and the country is in a better position to receive deportees. The association was responding to a request for input on ICE’s proposal to resume removals even though just over a year ago, on January 12, 2010, Haiti suffered an earthquake that killed more than 200,000 Haitians and displaced more than 2 million people. The ABA pointed out in a March 11 letter to ICE that Haiti is extremely fragile and currently threatened by a severe cholera outbreak that has spread to all levels of the population, including the remaining prisons where deported Haitians may be held upon return. The ABA also urged ICE to limit the detention of individuals who do not present a threat to national security or public safety. ICE nevertheless resumed limited removals to Haiti April 1, emphasizing that the removals will be conducted in a way that prioritizes the removal of aliens with final orders who pose a threat to public safety. At this time, ICE is not removing non-criminal Haitian nationals or those who have pending applications for temporary protected status.