Litigation

Debate Still Rages over Venue for Terror Detainees

By Peter Hardin

Not so fast, former U.S. Attorney General Michael Mukasey argues in trying to shoot down an idea recently floated to try five defendants from the 9/11 attacks in a federal court that could be securely established at Guantanamo Bay (see Gavel Grab).

Mukasey, who served under President George W. Bush, raises numerous objections in a Washington Post op-ed. He contends that the anonymity of jurors chosen to hear cases at Guantanamo could not be protected; that the arrangement would pose too high a personal cost to jurors and a financial cost to the government; and that the rule of law would not be upheld by a civilian trial.

Concludes Mukasey, “In the short term, then, we have to work with the tool Congress fashioned: military commissions in Guantanamo, a remote, secure and humane location.”

Meanwhile, a Philadelphia Inquirer editorial takes sides in the fierce debate over the appropriate venue to try terror detainees.

U.S. District Judge Lewis A. Kaplan’s recent ruling (see Gavel Grab) in the case of  Ahmed Khalfan Ghailani, the first former detainee at Guantanamo to be transferred for trial into the civilian courts, is instructive, the editorial says:

“A federal judge’s ruling last week paving the way for prosecution of a suspected al-Qaeda operative makes it clearer than ever that the right road leading out of Guantanamo Bay, Cuba, for the United States runs through the federal court system. That’s the best means to repair damage to U.S. prestige as a result of detaining terrorism suspects for years without charge and under harsh conditions.”

A Los Angeles Times editorial said Judge Kaplan’s opinion should be “required reading” for President Obama as his administration weighs a decision on where to try the accused 9/11 plotters. The editorial highlighted the following section of Judge Kaplan’s ruling:

“The court understands that there are those who object to alleged terrorists, especially noncitizens, being afforded rights that are enjoyed by U.S. citizens. Their anger at wanton terrorist attacks is understandable. Their conclusion, however, is unacceptable in a country that adheres to the rule of law.”

In a National Law Journal article, former federal appeals court Judge John J. Gibbons and former judge and FBI director William Sessions wrote that since a groundbreaking court decision two years ago, federal judges have “been playing an appropriate constitutional role in reviewing Guantanamo detainees’ habeas corpus petitions.”

Full post as published by The Gavel on July 20, 2010 (boomark / email).