Friday, November 13, 2009
Attorney General Eric Holder announced today that the government will transfer ten Guantanamo detainees to the U.S. for trial. The government will try five Guantanamo detainees in the regular federal courts for their roles in the 9/11 attacks, and five other detainees in military commissions (recently revamped in Chapter 47A, p. 385, of the National Defense Authorization Act for Fiscal Year 2010). The NYT profiles the ten detainees here.
Holder said that the Justice Department wouldn't transfer the ten until 45 days after notifying Congress, as required by section 1041 of the NDAA.
Holder also said that the Department used criteria set out in the Detention Policy Task Force's preliminary report (July 2009) to determine which detainees should be tried in regular Article III courts and which detainees should be tried by military commission. That report recognized the different appropriate uses of Article III courts and military commissions for different detainees, called for "significant reforms" to the military commission system "to ensure that they are lawful, fair and effective," and identified criteria for determining whether to try a detainee in an Article III court or a military commission. As to the criteria:
These . . . include the nature of the offenses to be charged; the identity of the victims of the offense; the location in which the offense occurred and the context in which the defendant was apprehended; evidentiary issues; and the extent to which the forum would permit a full presentation of the accused's wrongful conduct, among others. Decisions about the appropriate forum for prosecution of Guantanamo detainees will be made on a case-by-case basis in the months ahead.
This isn't a model of determinacy, and some of these criteria, as some critics have argued, suggest that the administration is using the case-by-case approach to go forum shopping to ensure convictions. But other criteria suggest that the administration has adopted a more balanced approach--one that recognizes the different legitimate uses of Article III courts and military commissions for different detainees--and that it is thoughtfully trying to sort the detainees out.