Civilian court: first stop for terrorism cases?
on Jul 20, 2009 at 10:51 pm
A federal government task force on detention policy, given six months more to work out details of war crimes prosecutions of prisoners at Guantanamo Bay, has made some decisions, and disclosed Monday it has adopted a preliminary policy goal that prefers trial in regular civilian courts. At the same time, though, it said that “compelling factors” may make it “more appropriate” that some trials be in military commissions — if those tribunals are reformed to make them fairer.
It also leaves open the possibility that, if some captives at Guantanamo Bay cannot be transferred to other countries and could not be prosecuted in civilian or military courts, they would face some unspecified further fate, perhaps including prolonged detention. That is an issue that has not yet been decided.
The joint Justice Department-Defense Department Detention Policy Task Force was due to submit on Tuesday of this week a final report on how the government would handle prosecutions for violations of “the laws of war” — mainly, acts of terrorism. But the leaders used their authority to give the Task Force six more months. Still, it issued a preliminary report outlining its views at this stage on what to do when prosecutions are referred for individuals now at Guantanamo. (President Obama issued an Executive Order on Jan. 22 — Order 13492 — that set in motion policy reviews on prosecutions under the laws of war. The Executive Order said a new policy should include the options of transfer out of Guantanamo, charge and trial on war crimes, or some unspecified other action. The Order can be read here.)
A Justice-Defense Departments news release describing the Task Force’s new preliminary report is here. The five-page preliminary report is here, and the two-page prosecution protocol (Tab A to the report) is here.
The Task Force is one of three that the President has put to work on the fate of detainees captured during the “war on terrorism.” A second is working on policies to guide interrogation of such captives; that group also had a Tuesday deadline but on Monday was given two more months to finish its task. The third is examining the case of each prisoner at Guantanamo — 229 remain there — to decide whether they are to be released, transferred, prosecuted, or perhaps kept in confinement, in the U.S. or elsewhere. The third group’s review process is supposed to be completed in time to meet the President’s goal of closing the Guantanamo Bay operation by next January. (Although there have been some press reports that the January deadline may be missed, the Justice-Defense news release Monday mentioned that goal without qualification.)
Monday’s preliminary report on detention policy is devoted primarily to discussing the military commission option for prosecution of “law of war” offenses. It details what changes the Obama Administration has already planned for military commissions, and the changes it wants incorporated in pending legislation in Congress. It devotes only a single paragraph to the issue of choosing a forum — civilian or military — for prosecutions.
However, the choice of a forum, and the factors involved in that choice, are spelled out in some detail in Tab A to the report.
A key policy declaration in Tab A is stated this way: “There is a presumption that, where feasible, referred cases will be prosecuted in an Article III court, in keeping with traditional principles of federal prosecution.” That paragraph goes on, though, to recite the possible need to use military commission trials, instead.
Later on, the protocol says that, if the prosecution team to which cases are referred decides that “prosecution is not feasible in any forum,” it can send the case back to the Task Force that is examining each detainee’s case to decide on “other appropriate disposition.” That phrase is not defined, and thus it may include possible prolonged detention, if transfer to another country cannot be achieved.
The preliminary report itself, while devoted mainly to the military commission alternative, does provide a quite vigorous defense of the capacity of civilian courts to try terrorism crimes.
And, in discussing what it suggests are flaws in the military commission system that Congress created in 2006, the preliminary report says that there must be a “reform” of the “appellate process to give reviewing courts more authority to correct both legal and factual errors at the trial level” — an indication that the Administration does not want the commission proceedings to be given the presumption of correctness.
