Legal News

What to Do With Gitmo Detainees? Profs Propose National Security Court

By Dan Slater

The first in a series of military commissions — or criminal trials of Guantanamo detainees — is scheduled to begin in May. In this week’s New Yorker magazine, legal correspondent Jeffrey Toobin reports that the controversial commissions, to be held in a make-shift courtroom at Gitmo, are being billed by the Bush administration as a pre-end-of-war version of the Nuremberg Trials, and, as such, have a “heads-I-win, tales-you-lose” quality.

“What’s unusual about what we’re doing is that we’re having the commissions before the end of the war,” Brigadier General Thomas Hartmann told Toobin. “The Nuremberg trials were after World War Two, so there was no possibility of the defendants going back to the battlefield. We still have that problem. We are trying these alleged war criminals during the war. So, in order to protect our troops in the field, in general we are not going to release anyone who poses a danger until the war is over” — regardless of the outcome of their trials.

By that reasoning, writes Toobin, even those Gitmo detainees who are acquitted of the charges against them are analogous to Nazi war criminals. But Toobin points out that the question of what to do with the remaining detainees is — like the phrase “until the war is over” — far from settled.

One response to that quandary, according to the article, is a proposal by law professors Neal Katyal (Georgetown), well-known for his win in Hamdan v. Rumsfeld, and Jack Goldsmith (Harvard), a former assistant AG. According to their proposal, a so-called national security court — in which sitting federal judges would preside over proceedings in which prosecutors would make the case that a person should be detained — would be a superior alternative to both military commissions and ordinary criminal prosecutions, which they believe are impractical for detainees captured on distant battlefields.

In their proposal, detainees would have lawyers, but they would have fewer rights than in a criminal case. Hearsay evidence may be admissible—so government agents could testify about what informants told them—and there would be no requirement for Miranda warnings before interrogations. Some proceedings would be closed to the public. (Goldsmith and Katyal wrote about their proposal last year in an NYT op-ed.)

Civil libertarians disagree. “The real problem is that there is an emerging consensus that we need to have some legal authority to detain people without trial,” said Ben Wizner, a staff attorney at the ACLU, “and that’s wrong. The government has proved it can criminally prosecute people in terrorism cases—in the African embassy-bombing cases, in the John Walker Lindh case, and others. That’s what the government should do—prosecute them, or release them.”

Katyal responds: “Would I love every case to be tried in criminal court? Of course. The reality is, when you’re dealing with foreign investigations, particularly concerning events that occurred a long time ago, there are going to be a small handful of cases that you can’t try in criminal court.”

LB readers: What say you on Katyal and Goldsmith’s proposal for a national security court?

Full post as published by Law Blog - WSJ.com on April 09, 2008 (boomark / email).