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December 31, 2012

KSM & The Final Chapter of Guantánamo

The perpetrators of 9/11 should be prosecuted for their crimes in a credible and legitimate court.  The victims of 9/11 deserve justice.  Americans deserve resolution. 

Trying Khalid Sheik Mohammed and others before a military tribunal creates unnecessary risks. The Supreme Court declared the original military commissions unconstitutional; it has not ruled on the most recent incarnation.  Judges before commissions have no body of precedent upon which to rely so every issue litigated is a make-it-up-as-you go process.  Some charges which defendants face are not war crimes, raising the fundamental question whether the commissions even have jurisdiction.  There are no such issues before federal courts. 

Terrorists should not be treated like soldiers.  As Judge William Young said when sentencing Shoe Bomber Richard Reid, “You’re no warrior….  You are a terrorist.  A species of criminal guilty of multiple attempted murders.” 

As the war ends, war tribunals should end.  Military commissions were created to prosecute those who attacked us on 9/11 and those who harbored them.  As that war ends in Afghanistan, the authority for war tribunals should also end. It is time for the United States to leave behind the controversial second-class system of justice at Guantánamo.  When combat operations cease, the United States should, within a reasonable time period, (a) transfer those cleared for release back home or to third countries, (b) transfer those being held indefinitely back home or to third countries, or formally charge and try those individuals, and (c) lift the transfer restrictions so that those charged with crimes may be tried in federal court.

The U.S. has robust tools to prosecute future terror suspects. Federal courts have a broad array of   criminal laws, experience and precedent in trying terror suspects, and have tried nearly 500 terror suspects since 9/11.  The Guantánamo military commissions, on the other hand, have produced only 7 trials, with 5 plea bargains, and been bogged down in the ever-changing commission rules and in political obstruction.  It also lacks the global credibility of the U.S. federal court system. Appropriately, no new terror suspect has been detained at Guantánamo since 2006.   

Guantánamo costs US taxpayers $443 million per year to operate. Keeping detainees at Guantánamo instead of high security federal prison costs $2.8 million more per detainee.