April 4, 2011
Government to Prosecute Alleged Terrorists in Military Tribunals
Attorney General Eric Holder announced on Monday that the Justice Department would turn the cases of alleged 9/11 conspirators Khalid Sheikh Mohammed, Walid Muhammad Bin Attash, Ramzi Bin Al shibh, Ali Abdul-Aziz Ali, and Mustafa Ahmed Al Hawsawi to the Department of Defense to proceed in military commissions. The move is a reversal for an administration that sought to prosecute these individuals in Article III courts.
AG Holder cited congressional restrictions on trying alleged terrorists held at Guantanamo Bay in Article III courts, and he reiterated the administration's constitutional objection to those restrictions:
Unfortunately, since I made that decision [to try alleged terrorists in Article III courts], Members of Congress have intervened and imposed restrictions blocking the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue. As the President has said, those unwise and unwarranted restrictions undermine our counterterrorism efforts and could harm our national security. Decisions about who, 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. Yet they have taken one of the nation's most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications. We will continue to seek to repeal those restrictions.
President Obama earlier objected to the restrictions on constitutional grounds, in his signing statement to the Ike Skelton National Defense Authorization Act for Fiscal Year 2011. (We covered his statement here.)
Section 1032 [which bars the use of funds authorized to be appropriated to transfer Guantanamo detainees into the United States] represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests.
These constitutional claims about executive prosecutorial authority aren't new or novel, of course. For example, we heard them early on in the government's prosecutorial decisions of alleged terrorists in the Bush administration. Check out this exchange at oral argument in Hamdi v. Rumsfeld between Justice Ginsburg and the Bush administration SG Paul Clement:
Justice Ginsburg: Does the Government have any rhyme or rational as to why some of these people . . . they are also being kept away from returning any place because there are criminal charges against them. . . . [H]ow does the Government justify some going through the criminal process and others just being held indefinitely?
Mr. Clement: Justice Ginsburg, I think that reflects the sound exercise of prosecutorial and executive discretion. There are some individuals who may be captured in a situation where they did not have any particular intelligence value, they have been handled in a way where there are no difficult evidentiary questions that would be raised in a criminal prosecution and those individuals can be dealt with in the Article III system. But there are plenty of individuals who either have a paramount intelligence value that putting them into the Article III system immediately and providing them with counsel whose first advice would certainly be to not talk to the Government is a counterproductive way to proceed in these cases.
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