Military Prosecutor: 66 Ready to Be Tried At GuantÃ¡namo Bay
American Constitution Society Blog - 7/15/2009
Navy Captain John Murphy, the chief military prosecutor at GuantÃ¡namo Bay, announced today that military prosecutors were ready to proceed with cases against 66 of the more than 220 security detainees held at the naval facility in GuantÃ¡namo Bay.

Obama Faces Hurdles in Closing GuantÃ¡namo
New York Times - 7/13/2009
As of this week, lawyers reviewing each detaineeâ€™s case have completed the initial sorting process for only about half the total GuantÃ¡namo population of 229 men, though officials said that by October they expected to complete the initial evaluations, determining who could be transferred to other countries, prosecuted or detained without charges.

Undoing the Damage
New York Times - 7/11/2009
Nearly three years after Congress created the military commissions at GuantÃ¡namo Bay, lawmakers and the Obama administration are working to undo the grievous damage to the Constitution, American justice and the nationâ€™s global image. Senator Carl Levin, the chairman of the Senate Armed Services Committee, has produced a good first draft of a new military tribunals law that was approved unanimously by his committee.

US Congress Debates Detainee Policy, Military Commissions
Voice of America - 7/9/2009
Committees of the U.S. Senate and House of Representatives heard testimony this week about the nation's detainee policy and proposals to revise the controversial military commissions system. Legal experts, current and former military officials, and representatives of civil liberties organizations discussed whether trials should take place in civilian courts, and lawmakers questioned Obama administration officials about detainees still held at the Guantanamo Bay, Cuba detention facility.

President Obama makes right call on indefinite detention of terror suspects
New York Daily News - 7/9/2009
Obama's brand-new assertion of executive power, played in the key of Bush-Cheney, puts the President in the right place - aggressively protecting the country from stateless thugs whose murderous ways know no bounds. The grounds for this move? Administration officials say the laws of war authorize the government to hold foreign-national prisoners to prevent more warlike acts.

GuantÃ¡namo Detainees in U.S. Federal Courts
Huffington Post - 7/9/2009
The American criminal justice system has demonstrated a remarkable ability to meet the legal challenges posed by "the war on terror." Based on my own experience in prosecuting terrorism cases and the growing historical record, federal courts consistently have resolved complex constitutional and procedural issues that terrorism cases often present, including the use and protection of sensitive intelligence information and the admissibility of evidence obtained overseas. As the Obama Administration continues to grapple with resolving the detention of prisoners at the U.S. Naval Station in GuantÃ¡namo Bay, Cuba, one option which therefore must be preserved is the criminal prosecution of detainees in U.S. federal courts.

Detainees, Even if Acquitted, Might Not Go Free
Wall Street Journal ($) - 7/8/2009
The Obama administration said Tuesday it could continue to imprison non-U.S. citizens indefinitely even if they have been acquitted of terrorism charges by a U.S. military commission.

Indefinite Detentions Are Backed
Washington Post - 7/8/2009
Guantanamo Bay detainees who are acquitted by civil or military courts may still be imprisoned indefinitely if the government determines that they pose a national security threat, the Defense Department's chief lawyer said yesterday.

Military commissions system 'broken': former Guantanamo prosecutor
Jurist - 7/8/2009
A former prosecutor at Guantanamo Bay [JURIST news archive] told the House Judiciary Committee [official website] Wednesday that the military commission [JURIST news archive] system used to try detained enemy combatants is "broken beyond repair."

Military Commissions: Government Flounders, As Admiral Hutson Nails Problems
Huffington Post - 7/8/2009
In a major national security speech on May 21, President Obama demonstrated an unnerving ability to keep too many options on the table by proposing five possible courses of action for the prisoners at GuantÃ¡namo: release or transfer, trials in federal courts, trials in a revamped version of the Military Commissions (the "terror trials" introduced by former Vice President Dick Cheney in November 2001), and indefinite detention. As I mentioned in an article last week, "At the time, civil liberties groups, lawyers and numerous commentators -- myself included -- responded with undisguised hostility towards the last two options."

Rep. Schiff Introduces New Way To Try Terrorists
Talk News Radio - 7/8/2009
Rep. Adam Schiff (D-Ca) testified Wednesday at a hearing surrounding the legal issues of the military commissions system, stating that there is a better way to prosecute the detainees at Guantanamo Bay. â€œSome call for the creation of a National Security Court to try the detainees and others have advocated all the detainees go into federal criminal courts. Earlier this year I introduced the HR 1315 â€œThe Terrorist Detainees Procedures Act of 2009â€ The legislation would make use of the military courts-martial and would prosecute the detainees as unlawful combatants.â€ said Schiff.

Officials: Fate of Guantanamo detainees uncertain
Associated Press - 7/7/2009
Obama administration lawyers acknowledged Tuesday they are uncertain how they will prosecute and deal with more than 200 detainees being held in the Guantanamo Bay prison.

U.S. Seeks Voluntary Statements At Guantanamo Trials
Reuters - 7/7/2009
The Obama administration said on Tuesday that only voluntary statements by foreign terrorism suspects at the Guantanamo Bay prison should be used as evidence at their military trials or else convictions could be reversed on appeal.

In Senate, Debate on Detainee Legal Rights
New York Times - 7/7/2009
Obama administration lawyers said Tuesday at a Senate hearing that detainees prosecuted by military commissions should have some of the same constitutional rights as American citizens tried in civilian criminal courts.

White House still deciding: War court vs. civilian trials
Miami Herald - 7/7/2009
The Obama administration prefers war on terror prosecutions in civilian courts but has not yet decided where to try those accused of involvement in the Sept. 11 attacks who are now held at GuantÃ¡namo Bay, government lawyers told a Senate committee on Tuesday.

Bring terrorists to US? Better than leaving Gitmo open, panel says.
Christian Science Monitor - 7/7/2009
With the deadline to close the GuantÃ¡namo Bay prison just six months away, Obama administration lawyers told Congress Tuesday they are still unsure about how they will deal with the remaining detainees there. But a bipartisan group of leading homeland-security experts criticized congressional efforts to block to the administration from moving the Guantanamo detainees to the US as â€œunnecessary and harmful to our national security.â€

White House ready to let GuantÃ¡namo inmates settle on US mainland
The Guardian - 3/22/2009
In a 90-minute interview on CBS tonight, Obama struck back at the former vice-president Dick Cheney over his charge that the new GuantÃ¡namo policy was putting US security at risk. The president said his predecessor's policy of indefinite detention was unsustainable and had generated anti-US sentiment without making the country safer.

International Criminal Trials for the Guantanamo "Hard Cases"
Harvard International Review - 3/2/2009
The inability of US courts to adequately handle these trials and the political impossibility of continuing the military commissions raises the obvious, yet difficult question: what is the proper venue for trying the Guantanamo â€œhard casesâ€? Further, how does the United States balance its competing interests of holding accountable those culpable individuals while reclaiming its international leadership in promoting adherence to the rule of law? The admittedly challenging answer is for the United States to shift away from a unilateral approach to the prosecutions and instead find an international forum to try the remaining Guantanamo detainees.

Former Gitmo prosecutor slams detention camp
Globe and Mail - 3/1/2009
Lieutenant-Colonel Darrel Vandeveld had been a prosecutor at Guantanamo Bay for one year when he went to seek advice from a priest. He wondered whether he should resign from a legal system he had come to believe was a sham, but he expected to hear he should stick with it and work within the system. The priest offered no such advice. Instead he told the lawyer: "Quit. Do not co-operate with evil."

Terrorism Suspect Headed to U.S. Court: Obama Orders Military to Transfer Case
Washington Post - 2/28/2009
President Obama directed military officials to transfer suspected al-Qaeda sleeper agent Ali Saleh Kahlah al-Marri into the custody of U.S. law enforcement yesterday, reversing a Bush-era order that essentially kept the detainee outside the reach of American courts for more than five years.

U.S. Files Charges Against Enemy Combatant
Wall Street Journal ($) - 2/27/2009
The government unsealed criminal terrorism charges against Ali al-Marri, a Qatari man long held as an enemy combatant, but the bare-bones indictment gave little hint of how prosecutors intend to build their case.

A Terrorism Test Case Obama May Not Want
New York Times - 2/27/2009
Three years ago, when the Bush administration announced that Jose Padilla would be tried in a civilian court after being held as an enemy combatant without charges, civil libertarians derided the move. It was a cynical attempt to end-run the Supreme Court before it could change administration policy, they said. On Friday, the Obama administration made a similar decision in a similar case: it indicted Ali Saleh Kahlah al-Marri, an accused enemy combatant long in detention limbo in South Carolina, on charges of giving aid to Al Qaeda. The government also asked the Supreme Court to dismiss Mr. Marriâ€™s challenge to his detention.

U.S. would leave detention power unsettled
Supreme Court of the United States Blog - 2/27/2009
The Obama Administration asked the Supreme Court on Friday afternoon to end the case of an individual captured and held in the U.S. as a terrorism suspect, but did not tell the Court that it is abandoning the claim that it has power to do so. Instead, it argued that the planned release of Ali Saleh Kahlah Al-Marri from a military jail, for criminal prosecution in civilian court, means there is no longer any live controversy over his detention.

Detention dilemma
The Christian Century - 2/24/2009
If the terrorism suspects aren't prisoners of war, what are they? Some would say they should be treated like any other crime suspectâ€”tried in civil court, where they can be presented with the evidence against them and allowed to defend themselves with the help of lawyers. If they have committed a crime, then they will be sentenced to jail; if not, they should be released. But the analogy to crime suspects doesn't work either. The evidence that the government would have against terrorism suspects is not the sort that is likely to be admitted in regular courts. And a public airing of the evidence would reveal national security secrets and undermine the nation's intelligence operation.

The Hard Cases: Will Obama institute a new kind of preventive detention for terrorist suspects?
New Yorker - 2/23/2009
The last â€œenemy combatantâ€ being detained in America is incarcerated at the U.S. Naval Consolidated Brig in Charleston, South Carolinaâ€”a tan, low-slung building situated amid acres of grassy swampland. The prisoner, known internally as EC#2, is an alleged Al Qaeda sleeper agent named Ali Saleh Kahlah al-Marri. He has been held in isolation in the brig for more than five years, although he has never stood trial or been convicted of any crime. Under rules established by the Bush Administration, suspected terrorists such as Marri were denied the legal protections traditionally afforded by the Constitution. Unless the Obama Administration overhauls the nationâ€™s terrorism policies, Marriâ€”who claims that he is innocentâ€”will likely spend the rest of his life in prison.

After Guantanamo: Military Commissions Are America's Best Option
Washington Post - 2/21/2009
Many critics acknowledge that there is a need for a court with evidentiary flexibility that accommodates national security while trying dangerous, stateless terrorists in a manner consistent with justice. They call them "national security courts." They already exist. We call them military commissions.

After Guantanamo, Back to America's Ideals
Washington Post - 2/21/2009
Those who say that America's existing courts can't handle terrorism prosecutions are wrong.

After Guantanamo: Detainees Should Remain in U.S. Custody
Washington Post - 2/21/2009
The main objective here must be the swiftest adjudication of all cases without providing enemy combatants access to civilian courts and the same rights afforded to American citizens.

After Guantanamo, Charge Them or Release Them
Washington Post - 2/21/2009
The men who remain imprisoned at Guantanamo are there now more because of nationality than because of any evaluation of their actual danger to the United States. Citizens of powerful European countries were released long ago.

After Guantanamo: Give Our Justice System Credit in Detainee Proceedings
Washington Post - 2/21/2009
A smart counterterrorism policy would focus on incapacitating those who provide value-added to the al-Qaeda network - the leaders, financiers, and technological experts who cannot be easily replaced, and who can be prosecuted for conspiracy to commit terrorism, if not more.

After Guantanamo: Closing Guantanamo Will Damage the War Effort
Washington Post - 2/21/2009
Turning our war on terror into an insulting and deadly game of catch-and-release.

After Guantanamo: Back to Rule of Law for Detainees
Washington Post - 2/21/2009
The Obama Administration can't just say it will follow the rule of law - the Bush administration said the same thing. It must actually do so.

After Guantanamo: Don't Let Terror Win in Our Courts
Washington Post - 2/21/2009
The real risk is that federal judges will do what al-Qaeda cannot: order that committed jihadists be released.

After Guantanamo: For Real Change, Overhaul U.S. Detention Policy
Washington Post - 2/21/2009
It's true that we cannot kill or capture our way to victory. Yet military detention, carefully calibrated to complement broader national security and counterterrorism policies, is necessary.

After Guantanamo: Review, Release, Prosecute and Build Resilience
Washington Post - 2/21/2009
The U.S. criminal justice system's record in international terrorism cases far outshines that of the GuantÃ¡namo military commissions.

After Guantanamo, Trust the Justice System We Have
Washington Post - 2/21/2009
We don't need a new National Security Court to prosecute terrorists, because our existing system has been effectively prosecuting them for years.

After Guantanamo, Obama's Decisions Grow More Complex
Washington Post - 2/21/2009
A Congressionally authorized detention framework is preferable to indefinite detention based solely on the President's constitutional authorities.

Obama Admin Faces Decision on Indefinite Detention with Imprisonment of US Resident Ali al-Marri
Democracy Now - 2/20/2009
Will President Obama institute a new kind of preventive detention for terrorist suspects? The answer may lie in the case of Ali Saleh Kahlah al-Marri, the last enemy combatant imprisoned in the United States. We speak to investigative journalist Jane Mayer of The New Yorker.

Obama Administration must define 'enemy combatant' consistent with traditional laws of war
Jurist - 2/17/2009
President Obama has issued executive orders establishing task forces to study how to close the Guantanamo detention camp and to reassess the legal frameworks for the future detention of unspecified classes of persons (terrorists? fighters? security risks?) at home and abroad. These orders create a 180-day window for deciding what kind of a country we want to be. Will we respect the limits of wartime detention authority contained in the Geneva Conventions and only imprison people under a constitutional rubric of criminal responsibility? Or will we falsely convince ourselves that we can detain a broad spectrum of individuals by simply maintaining an elastic definition of "enemy combatant" or by legislating a domestic administrative detention scheme for those whom it might seem inconvenient to prosecute?

4 Cases Illustrate Guantanamo Quandaries
Washington Post - 2/16/2009
Obama administration officials acknowledge that closing the prison is not risk-free and that some detainees may return to terrorism. But the president has concluded that Guantanamo has sapped America's moral stature abroad and mired the country in endless litigation, forestalling justice for the alleged terrorists. Of the 779 people taken to Guantanamo, only three have been convicted, and two of those have since been released.

Review of Guantanamo detainees begins
Los Angeles Times - 2/14/2009
The Justice Department is compiling the evidence against each prisoner, a first step toward shuttering the facility and deciding whether Obama can close the book on Bush's detention policies.

Backgrounder: Closing Guantanamo
Council on Foreign Relations - 2/12/2009
The first step to closing the camp will be to determine how many of the inmates can actually be charged with a crime, and experts say determining that has a number of components.

Solicitor general nominee says 'enemy combatants' can be held without trial
Los Angeles Times - 2/11/2009
Harvard Law Dean Elena Kagan, President Obama's choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners. She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.

Miranda rule may hamper detainee trials
Los Angeles Times - 2/10/2009
None of the men held at Guantanamo were advised of their rights against self-incrimination. That and other issues may cause problems for President Obama's goal of trying them in a civil legal system.

Questions For Obama On National Security Law: How to handle terrorists without Guantanamo?
Forbes - 2/4/2009
Terrorists--particularly the Muslim extremists, who not only operate in stealth and target civilian populations but also arm, or seek to arm, themselves with weapons of mass destruction--raise daunting legal problems. Their conduct is not adequately covered by either criminal law, though they certainly are lawbreakers, or the laws of war, though, like national armies, they may threaten a state's territorial integrity and political sovereignty.

Long-Term Terrorist Detention and Our National Security Court
A Working Paper of the Series on Counterterrorism and American Statutory Law - 2/4/2009
If the Obama administration chooses to maintain a system of non-criminal military detentionâ€”and for reasons set forth below, I think it shouldâ€”it will necessarily also choose to have a national security court.

What to Do About the Gitmo Detainees: The ball is in Congress's court.
Weekly Standard, Volume 014, Issue 19 - 2/2/2009
What is needed now--as Secretary of Defense Gates has acknowledged--is for the executive branch to work with Congress to draft comprehensive legislation that will provide a framework for handling these detainees. Before GuantÃ¡namo is closed, this new framework must provide a legal structure for three kinds of cases.

USA: President Obama's executive orders on detentions and interrogations
Amnesty International - 1/30/2009
Amnesty International notes that over recent months much of the discussion around the creation of such special courts has centred on the suggestion that some individuals should be deprived of some of the fundamental protections of fair trial and other rights which the ordinary criminal procedures before existing courts are designed to protect. In so far as one concern is that relevant evidence has been obtained by torture or other unlawful coercion, and therefore would be inadmissible in ordinary courts, changing the rules so as to subject detainees to unfair trials based on torture or other coerced evidence would be fundamentally inconsistent with international law.

A New Approach to Terrorism
Huffington Post - 1/30/2009
Beyond interrogation, the idea of using preventive detention, and holding people indefinitely is a misguided police. So is the idea of creating national security courts.

The importance of trying Ali Saleh Khalah Al-Marri
Counterterrorism Blog - 1/29/2009
On January 28, a group of 19 former government officials with experience in intelligence and national security filed an amici curiae brief with the Supreme Court in the case to provide the court a brief finding that holding Ali Saleh al-Marri in the U.S. as an enemy combatant for seven years on U.S. soil without charge has been dangerously counterproductive in combating terrorism.

Obama Made a Rash Decision on Gitmo: The president will soon realize that governing involves hard choices.
Wall Street Journal ($) - 1/29/2009
Eliminating the Bush system will mean that we will get no more information from captured al Qaeda terrorists. Every prisoner will have the right to a lawyer (which they will surely demand), the right to remain silent, and the right to a speedy trial.

Obama's Terrorism Policies Questioned: Opponents Cite Gitmo Inmates' Recidivism, Terrorists' Early Releases
Philadelphia Bulletin - 1/28/2009
There is increasing opposition to President Barack Obamaâ€™s executive order last week closing the terrorist prison in Guantanamo and suspending the military commissionâ€™s trials of terrorists. Revelations that released Guantanamo Bay inmates are rejoining al-Qaida and other terrorist organizations, coupled with the news that a terrorist convicted in civilian court is being released early, have many questioning the presidentâ€™s wisdom.

Obama's First Steps on Guantanamo
FindLaw - 1/28/2009
Within hours of taking office last week, President Barack Obama ordered government prosecutors to seek a halt to the military commission proceedings at Guantanamo. Less than two days later, he signed four historic executive orders that mark a sharp break from the Bush administration's legacy of arbitrary detention, cruel treatment, and unfair trials.

Gitmo Detainees: To Release Or Not To Release
Huffington Post - 1/28/2009
Gerald Staberock, Director of the International Commission of Jurists' Global Security and Rule of Law Programme, agrees that a court process is the best way to combat terrorism. "In our experience of looking at counterterrorism policies around the world, the best way to prosecute terrorism suspects is through independent, ordinary courts with guarantees of due process," he told me. "As we learned in the hearing of the Eminent Jurists Panel on Terrorism and Human Rights in Northern Ireland, keeping detainees in detention without trial for many years is grossly counter-productive."

Suspects can be tried or be freed
The Australian - 1/28/2009
There is absolutely no reason to create some newfangled and untested system to charge and try those few suspected terrorists whose legal fate presents US President Barack Obama with an excruciating political decision.

Gitmo closing - what now?
San Francisco Chronicle - 1/27/2009
A national security court system located on remote military installations within the United States would best achieve the delicate balance between promoting human rights and ensuring the safety of our nation.

Good-bye, Guantanamo: LAW national security expert sees challenges for Obama on terrorism policies
Boston University Today - 1/26/2009
Philip Oâ€™Neill, a School of Law lecturer on national security law, says that closing Guantanamo within a year is realistic and delivers a symbolic message to the world. But grappling with the implications of erasing the Bush policies will be a tall order and may be unsettling to some Americans.

National Security Court? We Already Have One
Investigative Project on Terrorism - 1/26/2009
It might be a surprise to learn the United States already has a workable, if not working, version of a National Security Court. The Anti-Terrorism and Effective Death Penalty Act of 1996 (Public Law 104-132) created significant revisions to the Immigration and Nationality Act (INA). Among those revisions was the creation of Title V of the INA. That provision created the Alien Terrorist Removal Procedures and the Alien Terrorist Removal Court (ATRC).

The Laws of War Have Served Us Well: Our armed forces shouldn't have to play catch and release.
Wall Street Journal ($) - 1/24/2009
This week, President Barack Obama signed an executive order to close the terrorist detention facilities at Guantanamo Bay within the year. It was a symbolic repudiation of the Bush administration's policies, but Gitmo is not the crucial issue. The real question is whether Mr. Obama will uphold the legal architecture necessary to continue the war against al Qaeda and its jihadist allies. What Mr. Obama's national security team will quickly discover is that the civilian criminal-justice system is an inadequate tool to deal with terrorists. President Bush's policies -- particularly treating captured terrorists as unlawful enemy combatants and employing a military court system to try them -- were dictated by the very real need to defend American citizens, not by disdain for the rule of law.

Holding Terrorists Accountable: A Lawful Detainment Framework for the Long War
Hawaii Reporter - 1/23/2009
The Obama Administration will not be ending the practice of military detention. Military detention of some detainees is appropriate, consistent with long historical practice, and a necessary and lawful tool in the current conflict. True, as General David Petraeus and Secretary of Defense Robert Gates have essentially said, we cannot kill or capture our way to victory in this conflict. Yet military detenÂtion, properly calibrated and designed to compleÂment our broader national security and counterterrorism policy, is necessary, not only for some detainees currently detained at Guantanamo but also for future captures of high-value detainees.

The Obama Orders: A Quick and Dirty Analysis
Brookings Institution - 1/22/2009
President Obama, in his second full day in office, has issued three major executive orders dealing with detention and interrogation in the war on terrorism. The orders, which have been received as major policy shifts in counterterrorism law and strategy, actually vary a great deal in their consequence. The most eagerly anticipated one, which orders an eventual closure of the detention facilities at GuantÃ¡namo Bay, Cuba, is actually far less significant than it may appear.

Obama and Guantanamo: Fighting terrorism is simpler when you're a candidate.
Wall Street Journal ($) - 1/22/2009
The stock anti-antiterror position is that detainees should be charged with crimes, either through military courts-martial or (preferably) the ordinary criminal justice system. Anyone who can't be indicted should be set free. But such trials are unworkable even for the 70 or 80 detainees that prosecutors had planned to try with military commissions, let alone prisoners who are too dangerous to release but for which there isn't sufficient evidence for a tribunal, much less civilian courts.

Escape from Gitmo
The American Lawyer - 1/22/2009
Two loosely defined camps took shape in the fall. Pragmatists from across the political spectrum called for a noncriminal detention regime sanctioned by Congress, under the review of a specialized terror court. "We're united by the belief that the legal architecture pre-9/11 is not appropriate for contemporary security challenges," says professor Matthew Waxman of Columbia Law School, "nor is the Bush administration's expansive and aggressive assertion of unilateral executive authority." But to human rights advocates like Harold Koh, dean of Yale Law School, a terror court is just the same stunted legal concept as the Bush military commissions.

Obama Issues Directive to Shut Down GuantÃ¡namo
New York Times - 1/22/2009
Saying that â€œour ideals give us the strength and moral high groundâ€ to combat terrorism, President Obama signed executive orders Thursday effectively ending the Central Intelligence Agencyâ€™s secret interrogation program, directing the closing of the GuantÃ¡namo Bay detention camp within a year and setting up a sweeping, high-level review of the best way to hold and question terrorist suspects in the future.

Torture and Timing: Explaining the Crawford Concession
Jurist - 1/22/2009
The â€œticking time bombâ€ is a false problem inviting a false solution (torture). So too is the â€œtoo dangerous to release but canâ€™t be triedâ€ argument for preventive detention.

Closing Guantanamo is way harder than you think
Foreign Policy - 1/21/2009
The government has expanded criminal statutes for terrorism since 9/11, and courts have gained experience in handling terrorism trials. But even when the information linking some of the most dangerous suspects to al Qaeda terrorism is reliable, it may not be usable or admissible in court.

First Steps at GuantÃ¡namo
New York Times - 1/21/2009
Long before President Obama took office, pretty much everyone, even President George Bush, said the prison at GuantÃ¡namo Bay needed to be closed. In June 2007, the White House claimed it was working on a â€œnumber of stepsâ€ that had to happen first â€” but getting started was really hard. Well, maybe not so hard. It took President Obama less than 12 hours. Before midnight of his first day in office, he took the obvious and vital step of halting the military tribunals at the prison camp. And he reportedly is considering a draft executive order that would direct that the prison be closed entirely within a year.

Obama draft order calls for closing Guantanamo Bay
Associated Press - 1/21/2009
The new Obama administration circulated a draft executive order Wednesday that calls for closing the controversial detention center at Guantanamo Bay within a year and halting any war crimes trials in the meantime. Closing the facility in Cuba "would further the national security and foreign policy interests of the United States and the interests of justice," read the draft prepared for the new president's signature.

Judge Suspends Guantanamo Case at Obama's Request
Washington Post - 1/21/2009
In one of its first actions, the Obama administration instructed military prosecutors late Tuesday to seek a 120-day suspension of legal proceedings involving detainees at the naval base at Guantanamo Bay, Cuba -- a clear break with the approach of the outgoing Bush administration.

US seeks to suspend Gitmo war crimes trials
Associated Press - 1/21/2009
The U.S. moved Tuesday to halt the Guantanamo war crimes trials, filing motions to suspend proceedings for 120 days until President Barack Obama's administration completes a review of the system for prosecuting suspected terrorists.

National Security Courts: Star Chamber or Specialized Justice?
ILSA Journal of International and Comparative Law, Vol. 15, No. 2, Spring 2009 - 1/19/2009
In October 2008, the author moderated a panel discussion addressing the utility of establishing a new national security court system for administering the detention and trial of terrorist suspects. The discussion featured comments by five lawyers with significant research and practical experience in the field.

I Was Slow to Recognize the Stain of Guantanamo
Washington Post - 1/18/2009
From June 2007 through September 2008, I worked as a prosecutor for the Office of Military Commissions at Guantanamo Bay, Cuba. Warning signs appeared early on, but I ignored them. The chief military prosecutor, Col. Morris Davis, complained to me and others that he was being bullied by political appointees in the Bush administration. They wanted him to bring charges against detainees before he was ready. He eventually resigned, saying that he didn't believe detainees could get fair trials at Guantanamo.

Obama's Dangerous Detainees
National Journal Magazine - 1/17/2009
News reports suggest that the Obama transition team may be pushing for an approach that could mean releasing within a year as many as 100 (or perhaps even more) Guantanamo detainees who appear to be dangerous but may not be prosecutable for any crimes.

Closing GuantÃ¡namo
New York Times - 1/17/2009
The real bad guys: After the prisoners are sorted out, Mr. Bushâ€™s egregiously bad judgment leaves all Americans with a huge problem. The abuses authorized by top Bush officials, and so gleefully defended by Mr. Cheney in particular in the last few weeks, create the possibility that men like Mohammed al-Qahtani and Khalid Shaikh Mohammed will never be able to face justice in a real courtroom. Mr. Obamaâ€™s team will have to come up with a solution that does not set such men free. We are not sure what it should be, but there is one unacceptable choice: creating a new detentions law that would allow them held without trial. That would merely compound Mr. Bushâ€™s catastrophically bad choices.

Obama's Top Law Enforcer Is Preoccupied with Bush's War on Terror
AlterNet - 1/16/2009
In his confirmation hearing, Holder called waterboarding "torture," but his support for preventive detention and warrantless spying is bad news.

Commentary: What should follow closure of Guantanamo?
McClatchy - 1/16/2009
The call for a "third way" approach is generally fueled by the notion that there are some detainees who are "too dangerous to be released but who cannot face criminal charges." This is mostly based on the assumption that some detainees have committed crimes not covered by American law and that much of the evidence against them would not be admissible in a traditional court because it was coerced through torture or abuse. But federal prosecutors have an impressive arsenal of prosecutorial weapons at their disposal, including laws against conspiracy to commit homicide, the harboring or concealing of terrorists and providing "material support" to terrorist organizations. The government can secure a conspiracy conviction by proving only an agreement to commit a criminal act and any step to further that agreement. If the government cannot meet that minimal burden of proof, it is difficult to see why it should continue to detain a suspect.

Opinion: Military courts-martial should replace failed Guantanamo policy
San Jose Mercury News - 1/15/2009
Military courts-martial have been in existence since the American Revolution and have a long history of dispensing justice without compromising military operations. Cases are tried before a panel of military judges using a set of due process protections provided for under the Uniform Code of Military Justice. Almost any wartime offense could be tried in a military court-martial, and their use would allow us to show the world we are giving detainees the same procedural protections we give our own service members.

Live Blogging Holderâ€™s Confirmation Hearing
New York Times Politics Blog (The Caucus) - 1/15/2009
Guantanamo | 10:58 a.m. Mr. Holder says â€œYes, Senator, Guantanamo will be closed.â€ The statement is greeted with a few enthusiastic â€œYES-esâ€ from the audience in the Senate chamber. On closing Guatanamo, Mr. Holder also had said that it would take far more time than some hoped because he and others had to review the individual detainees, and while some would be able to be transferred to other countries â€” â€œsafelyâ€ he added â€” others might not be so easily shipped elsewhere. Military Commissions | 11:44 a.m. On military commissions handling detainees, Mr. Holder said they would have to be substantially revamped. â€œI donâ€™t think the military commissions that we now have in place have all the due process requirements that I would like to see in them,â€ he said.

Military Commissions Can Show Independence
New York Times - 1/14/2009
While these conclusions of torture will strengthen President-elect Obamaâ€™s conviction that GuantÃ¡namo must be closed, they wonâ€™t make it any easier. The same interrogation practices that infect this military commission case would undermine federal prosecution as well. The new administration then has no good options for handling this and any similar cases, especially if it hopes to close GuantÃ¡namo quickly.

GuantÃ¡namo By Another Name
New York Times - 1/14/2009
Our procedural safeguards and evidentiary standards comprise the bedrock of American justice. A decision to jettison them, even for a small number of suspects, will undermine our system as a whole and perpetuate the damage to Americaâ€™s reputation for fairness.

Obama Keeps His Options Open
New York Times - 1/13/2009
More important than whether President-elect Obama closes Guantanamo is how his administration does so â€“- especially what legal process it provides those detainees it holds on to. Mr. Obamaâ€™s recent statement that we need a detention system that â€œadheres to rule of lawâ€ but â€œdoesnâ€™t result in releasing people who are intent on blowing us upâ€ seems designed to keep options open. Heâ€™s smart to do so.

Political vs. Legal Decisions
New York Times - 1/13/2009
A particularly difficult challenge facing the Obama administration is, put simply, politics. There are many ways to â€œclose GuantÃ¡namo,â€ to invoke the elastic catchphrase of the day. At one extreme Mr. Obama could end indefinite detention at the U.S. naval base in Cuba but reinstate it stateside or at some new offshore site. At the other, he could order every U.S. terrorism detainee, everywhere in the world, to be charged with a crime or released. He is not likely to do either. Choosing a middle path will be difficult.

So What Has Changed?
New York Times - 1/13/2009
The GuantÃ¡namo â€œexecutiveâ€ order should instead be called a â€œsymbolicâ€ order since it is not intended to execute anything. Guantanamo will continue operating just as it has. Mr. Obamaâ€™s stated desire to close it at some future point is the same desire members of the Bush administration have been stating for some time.

Defining Our Enemies
New York Times - 1/13/2009
Closing Guantanamo raises the contentious issue of what to do with the 250 people still being held there. Many in the human rights community advocate a simple solution â€” try them in criminal courts or release them. But that solution fails to recognize the United Statesâ€™ legitimate interest in holding individuals fighting against it in armed conflict.

Needed: A New Detentions Law
New York Times - 1/13/2009
The hardest single question in closing GuantÃ¡namo is what to do with those detainees whom the government believes in good faith to be too dangerous to set free yet who could not plausibly face trial before any tribunal of which America could stand proud. Todayâ€™s Times reports that the Obama transition â€œappear[s] to have rejected a proposal to seek a new law authorizing indefinite detention inside the United States.â€

Obamaâ€™s Plan to Close Prison at GuantÃ¡namo May Take Year
New York Times - 1/12/2009
President-elect Barack Obama plans to issue an executive order on his first full day in office directing the closing of the GuantÃ¡namo Bay detention camp in Cuba, people briefed by Obama transition officials said Monday.

A dilemma in Guantanamo's waning days
Los Angeles Times - 1/12/2009
Despite President-elect Barack Obama's call to close the Guantanamo Bay prison and end its war crimes tribunals, it could take years to shut the facility. Like a mammoth ocean liner, the prison at the U.S. naval base in Cuba cannot easily be turned from its original course as an interrogation site for suspected terrorists -- as Obama conceded Sunday.

Obama Faces Conundrum In Closing Guantanamo
National Public Radio - 1/5/2009
Just days after he won the presidential election, a transition team made up of analysts, lawyers and military officials began tackling the Guantanamo issue. They started sifting through the files of the roughly 250 men still held there, looking at the intelligence on â€” and the evidence against â€” the prisoners, trying to come up with new ideas to solve the Guantanamo conundrum.

Dangers of a preventive detention law
Boston Globe - 1/1/2009
PRESIDENT-ELECT Barack Obama has said he'll close the US detention center at Guantanamo Bay. The question is how. If the government has evidence that Guantanamo detainees have committed crimes, it should put them on trial in the federal courts, just like other suspected criminals. Those the government chooses not to prosecute should be safely repatriated or released. But some are advocating a third option. They say the United States should pass a law that would allow preventive detention for Guantanamo detainees. This means they would be imprisoned, perhaps indefinitely, not for what they supposedly did, but for what the government fears they might do.

The War and the Writ: Habeas corpus and security in an age of terrorism
Harvard Magazine, January-February 2009 - 1/1/2009
Huzaifa Parhat, a fruit peddler, has been imprisoned at GuantÃ¡namo Bay Detention Center for the last seven years. He is not a terrorist. Heâ€™s a mistake, a victim of the war against al Qaeda. An interrogator first told him that the military knew he was not a threat to the United States in 2002.

Optimizing Criminal Prosecution as a Counterterrorism Tool
A Working Paper of the Series on Counterterrorism and American Statutory Law - 12/19/2008
Prior to the 9/11 attacks, the United States relied primarily on federal criminal prosecution when it sought to incarcerate suspected terrorists for an extended duration. In the aftermath of 9/11, however, the United States buttressed its existing options for long-term detention of terrorism suspects by asserting that some such persons are combatants subject to military detention for the duration of hostilities pursuant to the law of armed conflict, and also by establishing military commissions to oversee war crimes trials for a subset of those individuals. These tools sparked intense controversy. Amid this controversy, however, an important point of consensus has emerged, namely, the need for a criminal justice system maximally capable of trying and disabling suspected terrorists.

OPPOSING VIEWS: Ex-U.S. Army Interrogator Explains Why We Must Close Guantanamo Now
Fox News Forum - 12/14/2008
Because Guantanamo has evolved into a symbol of repression, torture, and arbitrary rulings, everything about it is suspect, even confessions. These recent developments only highlight the urgent need for President-elect Obama to close down Guantanamo without further military commission hearings, even hearings to accept confessions.

Chertoff: Obama shouldn't rush on Guantanamo Bay
Associated Press - 12/14/2008
U.S. Homeland Security Secretary Michael Chertoff said on Sunday that President-elect Barack Obama shouldn't rush to close Guantanamo Bay before he has a plan to deal with all the detainees. In an interview with BBC television, Chertoff said Obama must work out how to prosecute detainees, particularly those who can't be sent back to their own countries for trial, before he closes down the facility.

Closing GuantÃ¡namo: The problem of preventive detention
Boston Review, January/February 2009 - 12/13/2008
We need to find a way to address serious and legitimate security concerns without the overkill of a general system of preventive detention for suspected terrorists. An alternative approach, sensitive to both security and liberty, would permit preventive detention, but only for detainees identified as fighters in an ongoing military conflict.

The courts must supervise detentions
Boston Review - 12/10/2008
The post-9/11 era is over, some say, but many hard questions of national security law and policy remain. Some now contend that the Obama administration not only should shutter GuantÃ¡namo, but also should foreswear reliance on preventive detention more generally when it comes to non-state actors such as al Qaeda.

Destructive technologies require us to re-assess civil liberties
Boston Review - 12/10/2008
I suspect that in the next years, even under a more liberal administration, Bush-era restrictions on civil liberties will be retained, at least to some extent. And they will be extended if new attacks occur. It is only a matter of time before a general preventive detention system, not limited to members of al Qaeda and associated groups, will be added to the criminal justice repertoire.

Criminal justice techniques are adequate to the problem of terrorism
Boston Review - 12/10/2008
Closing GuantÃ¡namo will not be easy. As David Cole points out, some of the detainees held there cannot be sent back to their home countries, and others are too dangerous to release. But while he insists that outsourcing the problem is not an option, he seems all too willing to bring the problem home. Establishing a long-term detention-without-trial regime on U.S. soil for Taliban and Al Qaeda suspectsâ€”Coleâ€™s proposed solution to the mess at GuantÃ¡namoâ€”would import the GuantÃ¡namo approach rather than eliminate it.

Nuts and Deadbolts: A Blueprint for the Closure of Guantanamo Bay
Brookings Institution - 12/8/2008
President-elect Barack Obama has made clear that he will close the Guantanamo Bay detention center. Notwithstanding the news this morning that Khalid Sheik Mohammed and four others want to confess their guilt in the 9/11 plots, closing the Cuban detention center is easier said than done.

Judging detainees on the facts
Boston Globe - 11/30/2008
EARLIER this month, US District Judge Richard Leon ruled in the case of six Bosnians held at Guantanamo Bay. One is Lakhdar Boumediene, the lead petitioner in last summer's Supreme Court decision restoring the rights of Guantanamo detainees to a habeas corpus hearing. So Judge Leon gave him that hearing, and Boumediene won. The judge ruled that he is not an enemy combatant.

How to Close Guantanamo
Washington Post - 11/30/2008
All along, a primary objection to Guantanamo has been its institutionalization of detention without charge. To propose a new scheme of detention as part of the policy solution to closing Guantanamo would perpetuate one of the most delegitimizing aspects of the facility. Such a system would be viewed as another departure from traditional U.S. values and would continue to serve as a recruitment tool for our enemies while alienating our friends and allies.

Ahead for Obama: How to Define Terror
New York Times - 11/29/2008
Early last Tuesday morning, a military charter plane left the airstrip at GuantÃ¡namo Bay for Sana, Yemen, carrying Osama bin Ladenâ€™s former driver, Salim Hamdan. Once the Bush administrationâ€™s poster boy for the war on terror â€” the first defendant in Americaâ€™s first military tribunals since World War II â€” Mr. Hamdan will spend less than a month in a Yemeni prison before returning to his family in Sana, having been acquitted by a jury of United States military officers of the most serious charge brought against him, conspiracy to support terrorism.

Ex-terrorism prosecutor flags flaws at tribunal
Associated Press - 11/28/2008
Like many human rights observers, Anthony Barkow has harsh words about the government's treatment of detainees at Guantanamo Bay. But Barkow offers a unique perspective: He's the only observer who successfully prosecuted terrorist sympathizers in his former life as an assistant U.S. attorney in Manhattan.

Wrenching Choices on Guantanamo
Washington Post - 11/21/2008
Secretary of Defense Robert Gates came into office wanting to close the American detention operation at Guantanamo Bay, Cuba. Nearly two years later, Guantanamo is still there. Secretary of State Condoleezza Rice has said she wants to close it. Guantanamo will outlast her. Yet, to watch the post-election Democratic triumphalism, you'd think that Guantanamo is as good as shuttered. President-elect Barack Obama has reiterated his campaign promise to close it, and some self-described advisers talk as though he'll wave a magic wand on Jan. 20 and a problem that has bedeviled this country for seven years will evaporate.

What to do with Gitmo's detainees?
Los Angeles Times - 11/21/2008
Glenn M. Sulmasy and David Kaye finish their debate on the Guantanamo Bay prison's planned closure under the Obama administration. Today's question: What to do with enemy combatants? Is there no one who should be held indefinitely? Shouldn't there be a difference between prosecuting a war and prosecuting a crime?

A National Security Court: Restoring the Balance Between Security and Justice
Jurist - 11/19/2008
In advocating the establishment of domestic terror courts I am seeking both a legal and practical solution to the continued detention of thousands of â€œpost 9/11 detaineesâ€. My over-riding concern is for the rule of law and rights of detainees otherwise held, in essence, in indefinite detention. That has been the primary motivation for my proposal.

Guantanamo's Yemeni Detainees Epitomize a U.S. Security Concern
Washington Post - 11/19/2008
The single biggest opportunity -- and potential difficulty -- for the incoming administration's plan to close the military prison at Guantanamo Bay, Cuba, comes from the same group of Yemeni prisoners, who make up fully 40 percent of the detainees still held there.

Closing GuantÃ¡namo prison may force new rules for trying terrorists
Christian Science Monitor - 11/18/2008
The prospect of closing the prison camp at GuantÃ¡namo Bay, Cuba, has sparked a broad and intensifying debate over key aspects of America's antiterrorism policy. While advisers to President-elect Obama agree that GuantÃ¡namo must close, there is no accord yet over how best to achieve it in a way that signals real change while not endangering US national security.

Closing GuantÃ¡namo
International Herald Tribune - 11/18/2008
Closing GuantÃ¡namo will require more than the stroke of a pen. It will take comprehensive policy changes and a major investment of domestic and international political capital. But it can be done, and it can be done in the new administration's first year.

National Security Issues in Civil Litigation: A Blueprint for Reform
A Working Paper of the Series on Counterterrorism and American Statutory Law - 11/17/2008
Congress should act now to provide federal courts with clear guidance for civil cases in which they must balance the competing demands of open justice and state secrecy. Although the Supreme Court and the Executive Branch also could implement these reforms, both branches have declined the opportunity to do so over many years and under many leaders. The Constitution gives Congress the authority to establish rules of jurisdiction, procedures, and evidence for the courts, and it should do so here.

Post-GuantÃ¡namo: A New Detention Law?
New York Times - 11/14/2008
As a presidential candidate, Senator Barack Obama sketched the broad outlines of a plan to close the detention center at GuantÃ¡namo Bay, Cuba: try detainees in American courts and reject the Bush administrationâ€™s military commission system. Now, as Mr. Obama moves closer to assuming responsibility for GuantÃ¡namo, his pledge to close the detention center is bringing to the fore thorny questions under consideration by his advisers. They include where GuantÃ¡namoâ€™s detainees could be held in this country, how many might be sent home and a matter that people with ties to the Obama transition team say is worrying them most: What if some detainees are acquitted or cannot be prosecuted at all?

Obama & Gitmo: End the demagoguing and know the facts before making policy.
National Review Online - 11/13/2008
Candidate Obama called for a return of pre-9/11 counterterrorism thinking, meaning full-blown civilian trials for all captured terrorists. Come January 20, though, President Obamaâ€™s principal task will be to protect the national security of the United States, not to secure the admiration of Human Rights Watch. Thus he will confront the stubborn fact the not every jihadist who poses a danger to American lives can be brought to trial and proved guilty beyond a reasonable doubt in accordance with our civilian due process standards.

Leading article: President Obama must end the scandal of Guantanamo
The Independent - 11/12/2008
Some things are easier said than done, among them the closure of the infamous prison at Guantanamo Bay, that has done so much to besmirch the reputation of the US around the world. There is scant doubt that President Bush was sincere in saying on several occasions over the last few years that he wanted to have done with the place. But his administration soon discovered the practical problems that closure would raise, and concluded that it could not do it. President-elect Barack Obama, however, says he will â€“ and he must, as one of his first acts when he takes office in nine weeks' time.

Guantanamo Closure Called Obama Priority
Washington Post - 11/12/2008
The Obama administration will launch a review of the classified files of the approximately 250 detainees at Guantanamo Bay immediately after taking office, as part of an intensive effort to close the U.S. prison in Cuba, according to people who advised the campaign on detainee issues.

GuantÃ¡namo's days are numbered
The Guardian - 11/11/2008
Barack Obama may close the prison, as promised, but creating a new national security court would be a terrible idea

How to Close GuantÃ¡namo: A Legal Minefield
Time - 11/11/2008
Many civil rights activists say existing military and civilian criminal courts can handle the GuantÃ¡namo cases and decide on the disposition of each of those 255 individuals, despite the Bush Administration's arguments otherwise. But the legal limbo many GuantÃ¡namo detainees have endured for years still poses significant problems. That is because the primary purpose of detaining these people was not to stage trials but rather to gain usable intelligence through interrogation. Forming proper criminal cases at this point would be difficult.

Obama Planning US Trials for Guantanamo Detainees
Associated Press - 11/10/2008
President-elect Obama's advisers are quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, a plan that would make good on his promise to close the Guantanamo Bay prison but could require creation of a controversial new system of justice.

By Any Means Necessary
The American Lawyer Litigation Supplement 2008 - 11/6/2008
In recent years there has been a subtle shift away from prosecuting terror suspects, in favor of sustained intelligence-gathering operations. Some prosecutors complain that they are being discouraged from bringing early charges to disrupt crimes that may be precursors to overt acts of terror-â€”placing the public at greater risk. In counterterrorism, there has always been a tension between prosecution and intelligence-gathering. What worries prosecutors, though, is the prospect of changing a balance that they say is proving to be effective.

Courting Failure
The American Lawyer Litigation Supplement 2008 - 11/6/2008
There have been something like two losses by the president during armed conflict-the Pentagon Papers case in 1971 and the Steel Seizure case in 1952. Yet the Bush administration has managed to lose five major war powers issues in just four years. This is an astounding development. This essay describes these losses and offers some reasons that they have occurred. In general, the losses are occasioned by three significant interrelated legal and policy decisions: an overly exuberant view of the president's commander in chief powers, a willingness to radically depart from American traditions, and a deep distrust of the federal courts.

Within His Rights
The American Lawyer Litigation Supplement 2008 - 11/6/2008
Although the president and his advisers have certainly acted assertively in many areas involving the war on terror, they have done so within the Constitution's text and history, in accordance with past presidential practice and available judicial precedent. In fact, if there has been empire building since September 11, it has been by the U.S. courts, not by the president. This is especially true with respect to what is probably the most controversial"at least for lawyers"aspect of the Bush administration's wartime policies: the detention, without criminal charge or trial in the civilian courts, of alleged Al Qaeda and Taliban operatives at GuantÃ¡namo Bay.

Difficult Choices Await New President on Guantanamo, Intelligence Policies
Wall Street Journal ($) - 11/6/2008
While the nation's economic crisis and the wars in Iraq and Afghanistan may be higher priorities for most Americans, Mr. Obama will have to decide quickly whether to permit the military-commission trials under way at Guantanamo Bay to proceed. He also must weigh the fates of hundreds of detainees held there in legal limbo.

Lawyers Will Be Lawyers, Dumping More on Juries Than They Can Process
Wall Street Journal ($) - 11/6/2008
When the high-profile prosecution of a Texas charity accused of helping Palestinian terrorists collapsed in a chaotic mistrial here a year ago, there were lots of theories about what went wrong, from government overreaching to a new political climate to a rogue juror. But there was another problem, according to lawyers who followed the trial: Some jurors were bored and bewildered. They were buried under 197 counts and an avalanche of evidence, including hundreds of documents and dozens of wiretap tapes.

So Goes Guantanamo
Detroit Metro Times - 11/5/2008
Forget the complicated legal arguments, the assignment of blame, and GuantÃ¡namo's eventual place somewhere near the sickening bottom of the George W. Bush administration's abysmal history. What really matters now regarding the Cuba-based U.S. detention center, according to a former military attorney who was part of the tribunals there, is simple: The American people could've prevented it and changed it.

Report from Guantanamo: Al-Bahlul case shows trials should be held in federal courts
Jurist - 11/1/2008
One week before the presidential election, the Guantanamo trials grind slowly on, although this week's trial of Ali Hamza Ahmed Sulayman al-Bahlul, a Yemeni accused of being Osama Bin Laden's media adviser, may very well mark the beginning of the end of proceedings at the facility. Both Senator Obama and Senator McCain have stated a desire to close the detention facility and, while Defense Secretary Gates has said it will remain open through the end of the Bush Administration, recent days have brought dropped charges and another prosecutor resigning in protest.

Enduring incarceration: Guantanamo and the Bush legacy
The Salt Lake Tribune - 10/27/2008
Guantanamo is one royal fiasco. It remains open even though Bush said more than two years ago that he'd like to see it closed. The holdup is due to all the thorny legal issues surrounding the remaining 255 or so prisoners. Issues such as, how do you prosecute a prisoner when the ostensible evidence against him was elicited through torture or torture ''lite''? Issues that are a direct consequence of Bush and his vice president's approval of prisoner abuse, ghost detainees, rendition and indefinite detention without charge.

Guantanamo trials flout US legal fundamentals: critics
Agence France Press - 10/26/2008
The military "war crimes" commissions created to try US war-on-terror detainees held in Guantanamo bear only a partial resemblance to normal US courts and are heavily criticized for flouting fundamental principles of American law.

Terrorist cases: Civilian courts adequate?
Supreme Court of the United States Blog - 10/24/2008
A group of former federal judges and ex-officials of the Justice Department have urged the Supreme Court to take action that would channel prosecution of terrorists into the regular civilian courts, arguing that they are fully up to the task. The arguments came in an amicus brief, one of several amici filings submitted Thursday asking the Supreme Court to hear the new case of Al-Marri v. Pucciarelli (08-368). That is the case that tests the power of the President to order the military to capture inside the U.S., and then hold indefinitely without criminal charges, an individual the government suspects of terrorist acts or support.

The Case Against a National Security Court
Jurist - 10/23/2008
JURIST noted in June that a group of high-level national security experts convened by the Constitution Project had issued a report [PDF] opposing creation of a special national security court because it would pose â€œa grave threat to our constitutional rightsâ€, and observed that a similar report issued by Human Rights First in May had stated that terrorism cases should be tried in the ordinary federal district courts [PDF]. Shortly afterward, also on JURIST, Professor Ben Davis warned against creating â€œStar Chamber justiceâ€ by establishing such a body. Now, however, proponents of what Ben termed â€œun tribunal dâ€™exceptionâ€ are pushing the matter before Congress. For this reason, it is important to note several additional reasons why a special national security court should not be created.

Terrorism Suspects on Trial
New York Times - 10/22/2008
Mary Jo White, former United States attorney in Manhattan, asks about the proper balance between military proceedings and criminal trials â€œwhen dealing with people accused of being involved in international terrorism against the United States.â€ The answer is, our federal courts can handle complex terrorism cases.

2 British Antiterror Experts Say U.S. Takes Wrong Path
New York Times - 10/21/2008
Two prominent British counterterrorism figures have criticized the United States for what they described as its overly militaristic approach to fighting terrorism and warned of a further erosion of civil liberties.

Next President Will Inherit Guantanamo Dilemma
Inter Press Service - 10/21/2008
Leading human rights groups reacted with outrage Tuesday to media reports that the administration of President George W. Bush has decided not to close the iconic prison at the U.S. Naval Base at Guantanamo Bay, Cuba.

Bush Decides to Keep GuantÃ¡namo Open
New York Times - 10/20/2008
Despite his stated desire to close the American prison at GuantÃ¡namo Bay, Cuba, President Bush has decided not to do so, and never considered proposals drafted in the State Department and the Pentagon that outlined options for transferring the detainees elsewhere, according to senior administration officials.

The Rule of Law in GuantÃ¡namo
New York Times - 10/11/2008
A federal judge in Washington has struck an important blow for the rule of law by ordering that 17 detainees be freed from GuantÃ¡namo Bay. But the Bush administration is fighting the ruling to avoid having the case become an open window into the outlaw world of President Bushâ€™s detention camps.

A National Security Court: Not Now, Not Yet
Georgetown Security Law Commentary - 10/1/2008
The current system of detention is broken. The Bush Administration asserted an open-ended power to detain people forever with no serious process. The result of that system was not only that the truly innocent could potentially be detained forever, it was also that the seriously guilty could call themselves mere shepherds and escape the consequences of criminal conviction. The Supreme Court wisely shut that policy down. Now, what is needed is a serious plan to prosecute everyone we can in regular courts, and a separate system to deal with the very small handful of cases in which patently dangerous people cannot be tried.

When Judges Make Foreign Policy
New York Times Magazine - 9/25/2008
Whichever candidate is elected, once the Bush administration is out of office, the war on terror will almost certainly be waged differently, and the constitutional issues that arise will not be exactly the same as before. GuantÃ¡namo Bay will probably be closed, and the legal team that planned it will be long gone. But most of its detainees will still have to be tried, and their appeals will reach the Supreme Court once again. Of course we will still want to catch terrorists â€” especially before they act â€” and we will have to figure out what to do with them when we do.

Fate of Guantanamo to be left to next president
Reuters - 9/16/2008
The Bush administration has intensified efforts to send more security detainees from Guantanamo Bay to their own countries but hopes are very dim of closing the prison by year-end, senior U.S. officials say.

Leave new 'war' rules to the next president
Miami Herald - 9/3/2008
In its few remaining months in office, the Bush administration is making questionable moves to extend its influence on policies involving security and the war on terror well beyond Jan. 20, 2009.

Terror case failures; Suspects should be tried in open court
Washington Times - 8/25/2008
While the Bush administration is still trying to defend its crumbling Guantanamo Bay commissions, scheduling more trials to come as if there will be no elections in November, Mr. Zabel and Mr. Benjamin prove that the answer to whether our federal courts can effectively and fairly deal with terrorism cases "lies in the extensive record of actual prosecutions going back to the early 1990s and continuing to this day in federal courts around the country."

How to Close GuantÃ¡namo - and What "Closing GuantÃ¡namo" Means
American Constitution Society Blog - 8/25/2008
Certainly closing GuantÃ¡namo means shutting the detention facility and ending the U.S. policy of holding prisoners there. But if that is all that closing GuantÃ¡namo means â€“ if the prisoners are simply transferred to another detention facility (even one within the United States), with most still to be held indefinitely without charge while a few are paraded through military commission trials that have little credibility and no legitimacy â€“ then GuantÃ¡namo will not really be closed; it will just be moved. And any administration that takes such an approach to closing GuantÃ¡namo, and still expects to reap significant national security dividends, will be sorely disappointed.

End of 'the torture presidency' in sight
World Net Daily - 8/20/2008
During the extensive coverage of the Bush administration's basic defeat in the so-called war crimes trial of Salim Hamdan, Attorney General Michael Mukasey was spared any mention of his June 4 assurance, before an audience of federal judges, that the forthcoming military commissions would be "in the best tradition of the American legal system."

Hamdan verdict is not a "victory" for American justice
Jurist Blog - 8/11/2008
It will be up to the next administration to fix the military commission mess. Fortunately, there is no need to reinvent the wheel. The United States already has a criminal justice system that works - one that has brought some of the most serious terrorism cases to trial. Ramzi Yousef was prosecuted in federal court. So was Zacarias Moussaoui. Even Khalid Sheikh Mohammed was indicted in federal court, five years prior to 2001.

With Fewer Terror Trials, Manhattan Court Quiets Down
New York Times - 8/8/2008
If the scene at first suggested another era, the 1990s, when a number of major international terrorism prosecutions ended up in New York and drew widespread attention, the more muted hearing for Ms. Siddiqui this week underscored the reality that New York has largely lost its title as the terrorism-trial capital.

Have military commissions been worth it?
Los Angeles Times - 8/7/2008
Don't get me wrong: Al Qaeda is one of the all-time most appalling organizations ever to blight this Earth, and the Taliban is little better. Military responses to terrorism are at times necessary, and U.S. troops have every right to incapacitate or detain those who lob hand grenades at them. Bin Laden's driver may well deserve to remain locked up. But are these guys really the worst of the worst, evil terrorist masterminds who so threaten "the continuity of the operations of the United States government" that they couldn't possibly be tried in U.S. civilian courts?

Guilty as Ordered
New York Times - 8/6/2008
Now that was a real nail-biter. The court designed by the White House and its Congressional enablers to guarantee convictions of high-profile detainees in GuantÃ¡namo Bay, Cuba â€” using evidence obtained by torture and secret evidence as desired â€” has held its first trial. It produced ... a guilty verdict.

Trial could bring US closer to closing Guantanamo
Washington Post - 8/5/2008
The war crimes trial of a driver for Osama bin Laden could bring the United States closer to its goal of closing the prison at Guantanamo Bay. The 10-day trial of Salim Hamdan, in a makeshift courtroom behind coils of razor wire, offers a road map for clarifying the legal status of nearly a third of the more than 250 men still held here.

Justice at Gitmo
Wall Street Journal ($) - 8/1/2008
After years of litigation, the first military commission trial of the war on terror -- United States v. Hamdan -- is underway in Guantanamo Bay, Cuba. Don't believe the critics who say justice isn't being done. Salim Ahmed Hamdan was captured by American and allied forces in Afghanistan. The government maintains -- and Hamdan has confirmed -- that he was Osama bin Laden's driver and bodyguard. Hamdan is charged with conspiracy to commit war crimes and providing material support for terrorism.

Where Terrorism Cases Belong
Washington Post - 7/31/2008
The federal courts have repeatedly put dangerous people away -- and prevented attacks -- with fairness and finality. To borrow the words of President Bush, the terrorists prosecuted by our courts are no longer a problem for the United States. Meanwhile, every prisoner being held without trial at Guantanamo Bay, Cuba, remains a huge problem.

From Gitmo to Miranda, With Love
Wall Street Journal ($) - 7/30/2008
For those who scoff at the idea that U.S. judges would release a dangerous terrorist here, think again. As Attorney General Michael Mukasey pointed out in a speech earlier this month at the American Enterprise Institute, the Boumediene decision was vague on every detail but one. The ruling said that for habeas review to mean anything, the court must have the power to release. What do we do with a graduate of al Qaeda training camps who hasn't yet committed an act of violence? What do we do if no country will take him? If Congress doesn't intervene, the most difficult detainee cases may end up being administered by federal judges who are dismissive of concerns about enemy combatants returning to the battlefield.

al-Marri and the Vexing Question of Indefinite Military Detention II (minus Mukasey)
Balkinization - 7/28/2008
Marty Lederman does a terrific job of laying out the al Marri landscape. Still, his measured praise of Judge Wilkersonâ€™s opinion might contain more measure and less praise were it to give applicable international law its due. Yes, it is praiseworthy that Judge Wilkinson looks to â€œtraditional law of war principlesâ€ to determine the constitutional ambit of detention authority. But he gets it wrong because he misconstrues the law of war and neglects applicable international human rights law.

Mr. Mukaseyâ€™s Justice
New York Times - 7/27/2008
No one is arguing that terrorists should be set free. What the administration fears is that hearings for any prisoner will reveal how much abuse has been meted out by American interrogators and how thin and tainted the evidence is against most of the GuantÃ¡namo prisoners.

Workable Terrorism Trials: A special federal court could balance fundamental rights and national security needs.
Washington Post - 7/27/2008
ON THE OPPOSITE page today, we publish the views of a federal judge who argues that terrorism cases can and should be handled within the traditional federal trial court system. Advocates of such an approach often point to successful prosecutions of those responsible for the 1993 bombing of the World Trade Center in New York as evidence of the federal court's ability to process such cases in a fair and relatively smooth manner. They cite expansive laws, such as the material-support statute, that apply both to domestic and overseas acts and give law enforcement officers the ability to arrest someone who aids the enemy.

The Right Place to Try Terrorism Cases
Washington Post - 7/27/2008
I have spent 27 years on the federal bench. In particular, my experience with the trial of Ahmed Ressam, the "millennium bomber," leads me to worry about Attorney General Michael Mukasey's comments last week, urging Congress to pass legislation outlining judicial procedures for reviewing Guantanamo detainees' habeas petitions. As constituted, U.S. courts are not only an adequate venue for trying terrorism suspects but are also a tremendous asset in combating terrorism. Congress risks a grave error in creating a parallel system of terrorism courts unmoored from the constitutional values that have served our country so well for so long.

Mukasey, al-Marri, and the Vexing Question of Indefinite Military Detention
Balkinization - 7/26/2008
The Attorney General attracted a great deal of attention last week by delivering an address to the American Enterprise Institute in which he urged Congress to do something about the habeas corpus proceedings that are now underway as a result of the Boumediene decision. That is to say, after ignoring Congress for almost eight years, and insisting all along that detention decisions can accurately and fairly be made by the Pentagon itself, without any judicial review, meaningful adversarial process, or public transparency, the Administration is now all-of-a-sudden desperate for statutory guidance -- just at the very moment, not coincidentally, that the federal courts are beginning finally to make some sense of the whole affair, to address the substantive question of who can be militarily detained, and to provide a semblance of due process to the hundreds of GTMO detainees.

Closing 'Gitmo' won't be easy
Christian Science Monitor - 7/25/2008
The detention center at GuantÃ¡namo hangs on the US like a ball and chain. Both presidential candidates and President Bush want it closed. But that won't be easy without broad consensus on how to deal with current and future detainees.

Administrative Detention: The Integration of Strategy and Legal Process
The Brookings Institution - 7/24/2008
My purpose in these pages is not to convince the reader that a new administrative detention regime is necessary, nor do I mean to offer a specific legislative roadmap towards one. I have argued elsewhere for â€œa durable, long-term framework for handling detaineesâ€”one that lets [the United States government] hold the most dangerous individuals [it captures] and collect intelligence from them (including through lawful interrogation), but also (unlike Guantanamo Bay) has rules and procedures that are politically, legally and diplomatically sustainable.â€ Other papers in this series argue for various approaches to preventive detention. In this paper, rather, I aim to examine what seem at first like simple questions underlying the discussion of administrative detention and the possible need for new laws: in combating terrorism, why administratively detain, and detain whom?

Rules for Guantanamo Bay proceedings are still unclear
Los Angeles Times - 7/22/2008
More than six years after the Bush administration sent hundreds of foreign prisoners to Guantanamo Bay, the rules for deciding just who can be held and for how long remain unclear.

Mr. Mukasey's Modest Proposal
Wall Street Journal ($) - 7/22/2008
We had not known previously that among Attorney General Michael Mukasey's skills was the satirical bite of Jonathan Swift. Only a Swiftian wit could have come up with Mr. Mukasey's proposal in a speech yesterday that the Solons of Congress solve the legal riddles of the Supreme Court's recent Boumediene decision on the rights of Guantanamo detainees. Absent "guidance from Congress," the AG said, "different judges even on the same court will disagree about how the difficult questions left open by Boumediene will be answered."

Mukasey Seeks Law on Detainees: Congress Is Urged To Limit Rights Of Terror Suspects
Wall Street Journal ($) - 7/22/2008
Attorney General Michael Mukasey urged Congress to pass new limits on the legal rights of terror detainees, a move that seeks to bolster the Bush administration's antiterrorism policies in light of a rebuke by the Supreme Court.

Administration Calls for Action on Detainees
New York Times - 7/21/2008
After a major setback in the Supreme Court last month, the Bush administration urged Congress on Monday to work out a plan for allowing prisoners in GuantÃ¡namo Bay to contest their incarcerations before federal judges â€” but without ever letting them set foot in the United States because of the â€œextraordinary riskâ€ they pose.

Mukasey Asks Congress to Write New Rules on Detainees
Washington Post - 7/21/2008
Attorney General Michael B. Mukasey this morning urged lawmakers to step into the debate over how the U.S. legal system should handle claims by detainees at the U.S. naval facility in Guantanamo Bay, Cuba, beseeching Congress to help answer difficult questions about the rights that should be afforded to hundreds of enemy combatants.

Blue Ribbon Committee Condemns National Security Courts
American Constitution Society Blog - 7/18/2008
The calls for national security courts â€” specialized hybrid tribunals that would review the preventive detention of suspected terrorists (both within and outside of the territorial United States) and conduct the detaineesâ€™ criminal trials â€” are usually premised on the argument that traditional Article III courts are ill-equipped to handle these cases. The threats we confront with international terrorism are of such a different kind and degree than threats we have confronted in the past, goes the argument, that only a new system has the capacity to handle these cases. However, this claim is not substantiated and is, in fact, directly contradicted by a growing body of evidence that Article III courts have already successfully handled terrorism cases.

The videotape, the war-crimes trial and the future of Guantanamo Bay
National Public Radio: The Takeaway - 7/17/2008
Eyes are once again on the military prison at Guantanamo Bay, Cuba. This week, itâ€™s because of the release of a hidden-camera video that gave the world a glimpse into interrogations. And, next week, pending a federal hearing Thursday, Osama bin Laden driver Salim Hamdan is scheduled to appear in Guantanamoâ€™s first trial â€” the first American war-crimes trial since World War II.

As Domestic Spying Rises, Some Prosecutions Drop
National Public Radio - 7/11/2008
Since Sept. 11, the number of spying warrants approved by the Foreign Intelligence Surveillance Court has more than doubled, according to statistics the Justice Department releases each year. At the same time, the number of criminal indictments against people associated with Islamist extremist groups has dropped by more than half, according to a recent study by the group Human Rights First. Current and former officials at the FBI and the Justice Department say those two statistics demonstrate a shift in the way the government is addressing the challenge of terrorism. The officials say the pendulum is swinging from a model that favors criminal prosecutions to one that favors more intelligence gathering.

Guantanamo Crumbles
Washington Post - 7/7/2008
THE CASE OF Huzaifa Parhat provides the clearest, most compelling evidence yet that the process used by the Bush administration to justify holding detainees at Guantanamo Bay is deeply and irreversibly flawed and must be discarded.

How do we bring Osama Bin Laden to justice? America is clueless
NY Daily News - 7/5/2008
News flash: Osama Bin Laden and his deputy Ayman al-Zawahiri are captured in Pakistani tribal areas and turned over to American custody. What would happen next? Celebratory news stories, cries of a major victory in the war on terrorism - and total confusion. This is the shameful truth: Six and a half years, four major Supreme Court cases - including the landmark ruling giving detainees habeas corpus rights - and endless lower court litigation after Sept. 11, 2001, we have no agreed-upon rules for handling this situation.

Beyond Guantanamo
Washington Post - 6/30/2008
THE SUPREME Court's recent decision to allow those held at the U.S. prison in Guantanamo Bay, Cuba, to challenge their detentions in federal court triggered the beginning of what could have been a welcome debate about terrorism policy between the presumptive presidential nominees. Too bad that the exchange quickly descended into name-calling and evasion, with surrogates for Republican John McCain calling Democrat Barack Obama "naive" for applauding the decision and Mr. Obama asserting that Republicans lacked the moral authority to criticize him because they had engineered the "distraction of the war in Iraq" instead of tracking down the culprits in the Sept. 11, 2001, attacks.

Book Review: 'Law and the Long War' by Benjamin Wittes
Los Angeles Times - 6/29/2008
Since Sept. 11, 2001, the executive branch's aggressive efforts to disable possible Al Qaeda terrorists have moved forward with only limited legislative contributions from Congress. Now the administration's detention of hundreds of alleged Al Qaeda operatives at the U.S. naval base in Guantanamo Bay, Cuba, many of whom have been imprisoned there for more than six years, is generating a landslide of courtroom litigation in which the government is playing a losing hand.

Once sleepy Navy base could return to oblivion
Associated Press - 6/28/2008
It is increasingly obvious that the days of this U.S. offshore prison are numbered. The Bush administration's main rationale for holding terrorism suspects without trial vanished when the Supreme Court ruled June 12 that they can sue in federal courts. John McCain and Barack Obama have both called for the detention center to be shut. But whoever becomes the new president will have to figure out what to do with those left at GuantÃ¡namo -- roughly 270 at present.

The Home-Front Battle Heats Up
Wall Street Journal ($) - 6/27/2008
Clearly we are still grappling with the basic constitutional conundrums of the age of global jihad. In "Law and the Long War," Benjamin Wittes, a fellow at the Brookings Institution, sets out to determine just where our crucial post-9/11 policies fit in our constitutional framework and legal traditions. Along the way, he tries to define the proper role of our three branches of government amid the changing circumstances of a war unlike any other we have fought in our past.

Another Rebuke on GuantÃ¡namo
New York Times - 6/25/2008
One of GuantÃ¡namoâ€™s many horrors is just how long people have been held there in a cruel legal limbo. Huzaifa Parhat has been detained for six long years, despite his insistence that he was an innocent swept up in the chaos in Afghanistan. It is welcome news that a federal appeals court has now ruled â€” in the first decision of its kind â€” that Mr. Parhat was improperly labeled an â€œenemy combatant.â€

How to Close Guantanamo
Center for American Progress Report - 6/23/2008
The reality is that the potential harm from GuantÃ¡namo detainees to American interests is not limited to the prospect of violence perpetrated after release. GuantÃ¡namo as currently constructed has become a symbol of a rogue American hegemony that disregards the rule of law, even as it uses calls for freedom and democracy as a weapon to assert its influence across the globe.

Now, It's Up to Congress
Legal Times - 6/23/2008
As important as it is, Boumediene v. Bush does not address the most important policy question with respect to detention of so-called â€œunlawful enemy combatantsâ€ at GuantÃ¡namo: What rules ought to apply to determining if these individuals are in fact â€œcombatantsâ€ and ought to be detained? Thatâ€™s a job for Congress, not the courts.

Special US terrorism courts would threaten Constitution: report
Jurist - 6/23/2008
Special national security courts to try terrorism suspects are "unnecessary" and "dangerous to traditional constitutional protections," according to a report [text, PDF; advocacy press release] issued Monday by the Constitution Project [advocacy website].

A Critique of "National Security Courts"
The Constitution Project Report - 6/23/2008
Recently, some scholars and government officials have called for the creation of â€œnational security courtsâ€â€”specialized hybrid tribunals that would review the preventive detention of suspected terrorists (both within and outside of the territorial United States), conduct the detaineesâ€™ criminal trials, or, in some cases, both. Advocates for these courts claim that they offer an attractive middle ground between adherence to traditional criminal processes and radical departures from those processes.

Bipartisan Coalition Rejects Proposal to Create Separate Court System
The Constitution Project Press Release - 6/23/2008
Today the Constitution Project condemned proposals to create a system of "national security courts" in a new white paper, "A Critique of 'National Security Courts.'" In recent years, and particularly in the aftermath of the Supreme Court's decision in Boumediene v. Bush affirming the constitutional rights of "enemy combatants" to challenge their detentions through habeas corpus, several scholars and government officials have called for the creation of specialized hybrid tribunals that would review the preventive detention of suspected terrorists (both within and outside of the territorial United States), conduct the detainees' criminal trials, or, in some cases, both.

Courts Can Handle Terrorists
Washington Post - 6/20/2008
This week's visit is my third trip to Guantanamo, and I have yet to see a hearing run smoothly. The military commission system is mired in controversy and is moving at a snail's pace. Since the first prisoners arrived six years ago, the government has charged just 20 men and obtained only one verdict, a conviction.

Congress's Guantanamo Burden
Washington Post - 6/13/2008
The key words in Justice Anthony M. Kennedy's Guantanamo opinion do not involve the history of habeas corpus, the territorial status of Guantanamo Bay or the accountability of the executive branch to the rule of law. They appear on the opinion's penultimate page and are unlikely to attract much attention amid the chatter the decision has already generated. "[O]ur opinion does not address the content of the law that governs petitioners' detention," Kennedy wrote. "That is a matter yet to be determined."

The Guantanamo Court
Washington Post - 6/7/2008
IT'S NOT SURPRISING that the five detainees facing military commissions at Guantanamo Bay, Cuba, for their alleged roles in the Sept. 11, 2001, terrorist attacks would complain about being put on trial. Like Zacarias Moussaoui, the al-Qaeda operative who pleaded guilty in U.S. federal court to charges of conspiring to kill Americans, these men rail against the U.S. government, question the legitimacy of the military commissions and reject court-appointed lawyers. Some also claim to have been tortured. But unlike Mr. Moussaoui, the five on trial in Guantanamo have a point.

9/11 suspects are arraigned: Alleged mastermind says he wants death penalty
Baltimore Sun - 6/6/2008
Khalid Sheikh Mohammed, the self-styled mastermind of the Sept. 11 terrorist attacks, rejected his legal team and asked to represent himself in his first public court appearance yesterday, proclaiming that he intended to plead guilty and was aware that he faced the death penalty.

Editorial: Fair trials; Terrorism detainees' cases should be heard in civilian courts
Columbus Dispatch - 6/5/2008
The pending trials of terrorism suspects at Guantanamo Bay, Cuba, are fraught with potential problems. Many legal observers believe that the system of trials by military commission is stacked in the government's favor.

Mukasey Defends Military Commissions
Legal Times Blog - 6/4/2008
The debate over the efficacy of the criminal justice system in handling terrorism cases has raged in recent years. While the Bush administration's attempts to try GuantÃ¡namo Bay detainees in military tribunals have falteredâ€”indeed, the first iteration of the commissions was cast out by the Supreme Courtâ€”the federal courts have seen the convictions of several suspected terrorists, including Padilla and Zacarias Moussaoui, who pleaded guilty to playing a role in the 9/11 attacks and was sentenced to life in prison.

Federal Courts Can and Should Handle Terrorism Trials
The Hill Blog - 5/29/2008
In recent years, there has been much debate about the proper forum in which to prosecute suspected terrorists, sparked in large part by the failure of the Guantanamo military commission system to hold terrorism suspects accountable for the most serious crimes. Nearly 800 men have been imprisoned at Guantanamo since 2002. But more than six years later, prosecutors have sought charges against just sixteen men and convicted only one.

Report Says Courts Can Handle Terrorism Cases
Associated Press - 5/28/2008
Two former federal prosecutors say that when it comes to handling accused terrorists, the best way is the old way: Put them on trial in civilian courts, not military tribunals.

The Lawyers War
Wall Street Journal ($) - 5/20/2008
The war on terror is easily the most litigated war in history, and on the evidence so far the lawyers are winning. They may yet succeed in killing military commissions, despite their long U.S. history and a law duly passed by Congress and signed by the President.

Military Tribunal Fiasco: Our View: Return Suspected Terrorists to U.S. Courts
Baltimore Sun - 5/11/2008
It's been years since they were detained, held in an isolated encampment that allows for few if any visitors. Many of the prisoners have never talked to a lawyer, while others languish in obscurity on flimsy or, worse, secret evidence. Their jailers aren't dictators or military juntas. That infamous distinction belongs to the United States. Its shameful treatment of suspected terrorists held at the U.S. Naval Station at Guantanamo demands their return to U.S. courts.

After GuantÃ¡namo: The Case Against Preventive Detention
Foreign Affairs, May/June 2008 - 5/1/2008
The U.S. detention facility at GuantÃ¡namo Bay has become a stain on the United States' reputation. Shutting it down will cause new problems. Rather than hold terrorism suspects in preventive detention, the United States should turn them over to its criminal justice system.

Close Guantanamo--And Then What?
Forbes - 4/29/2008
We wonder how such relaxed rules as the admissibility of hearsay or coerced evidence, secret Star Chamber-like proceedings, the denial to the defense of exculpatory evidence, or a proceeding smacking of Kafka, where the accuser refuses to articulate the charge for purported reasons of national security, could conceivably pass constitutional muster, but we leave that question for another day.

Camp Justice: Everyone Wants To Close GuantÃ¡namo, But What Will Happen to the Detainees?
New Yorker - 4/14/2008
The future of the detention facility on the American naval base at GuantÃ¡namo Bay, Cuba, inspires an unusual degree of bipartisan consensus, at least in theory. All three remaining candidates for President, the Republican John McCain and the Democrats Hillary Clinton and Barack Obama, have called for GuantÃ¡namo to be closed. So have Condoleezza Rice, the Secretary of State, and Robert M. Gates, the Secretary of Defense; after touring GuantÃ¡namo in January, Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, said, â€œIâ€™d like to see it shut down.â€ At a news conference in 2006, President Bush said, â€œIâ€™d like to close GuantÃ¡namo.â€

The Laws in Wartime: Boost Trust, Close Guantanamo, And Establish A National Security Court
Slate - 4/2/2008
Closing Guantanamo begs the question of what should be done with the 100 to 150 remaining detainees whom no responsible president will release, as well as any future detainees. Right now, 15 detainees are scheduled to be tried in military commissions. But trial by military commission is not the solution. The politically damaged commissions are disliked by the same military tasked with running them, and they will be subject to legal and political challenges for a decade. The next government should ditch commissions altogether and place the incapacitation of terrorists under the supervision of a national-security court composed of federal judges with life tenure.

A Terror Threat in the Courts
New York Times - 1/13/2008
The use of the criminal law in terrorist cases has never been an easy fit. After all, the primary purpose of counterterrorism is the prevention of future acts, while the criminal law has developed primarily to punish conduct that has already occurred. The question raised by the Padilla trial is whether a case about an attack that never actually happened can be tried in the criminal courts without transforming the nature of that system itself.

Detention Retention: Are Guantanamo Detainees All Innocent?
The Brookings Institution - 12/7/2007
This country desperately needs a new adjudicatory framework for these detainees--one that includes an expanded judicial review, fairer rules, and clearer, less permissive standards for detainability. On this point, my only disagreement with Waxman is on the question of which branch of government should set it up. He urges the courts to do it through the habeas process; I want to see Congress design and enact a statutory scheme. That said, I don't believe that the result of such a process would be freedom for a lot of innocent people. The more likely outcome would be continued detention with the judiciary's stamp of approval for the majority of detainees, and freedom for two groups: A small group of true innocents and a larger group consisting of dangerous folks against whom the government has only weak evidence.

Illinois prison likely to house detainees
Washington Post - 12/6/2007

How to Try a Terrorist
New York Times - 11/1/2007
In 2001, I presided over the trial of Ahmed Ressam, the confessed Algerian terrorist, for his role in a plot to bomb Los Angeles International Airport. That experience only strengthened my conviction that American courts, guided by the principles of our Constitution, are fully capable of trying suspected terrorists.

The Smart Way to Shut Gitmo Down
Washington Post - 10/28/2007
President Bush has said publicly that he would like to see Guantanamo Bay closed, if he could do so without putting Americans in greater danger. He can, and he should. My experience advising former defense secretary Donald H. Rumsfeld and Secretary of State Condoleezza Rice on these issues has convinced me that there's a way out, but it will take some painful truth-telling to get there. For even if Guantanamo Bay could be defended in legal or moral terms, it still hurts us more than it helps us in battling al-Qaeda.

Mukasey Backs Special Courts for Terror Suspects
National Public Radio - 10/9/2007
Senators at Judge Michael Mukasey's confirmation hearing to be attorney general are likely to ask about many of his writings, including a Wall Street Journal opinion piece with the provocative heading, "Terror Trials Hurt the Nation Even When They Lead to Convictions." In that column, Mukasey said the country could benefit from a National Security Court â€” a separate judicial system, specially designed to try accused terrorists. Legal experts have been batting around the idea for a while now.

Jose Padilla Makes Bad Law: Terror trials hurt the nation even when they lead to convictions.
Wall Street Journal ($) - 8/22/2007
It may be claimed that Padilla's odyssey is a triumph for due process and the rule of law in wartime. Instead, when it is examined closely, this case shows why current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism.

Take Al Qaeda to Court
New York Times - 8/21/2007
As a former federal prosecutor who worked on terrorism-related cases, I have had firsthand experience doing just what proponents of a national-security court say is impossible. In 2005, I prosecuted two Yemeni citizens who conspired to send money from Brooklyn to members of Al Qaeda and Hamas to support terrorist activities. Sheik Mohammed Ali Hassan al-Moayad, the main defendant in the case, boasted that he had met Osama bin Laden and previously sent both Al Qaeda and Hamas millions of dollars in assistance.

Momentum for a National Security Court
Jurist - 7/13/2007
As Congress and the current administration struggle over how to proceed with the detention and adjudication of alleged jihadists imprisoned at Guantanamo, increased attention is being paid to the creation of a hybrid court to best meet the needs of policy makers, the Department of Defense, U. S. citizens, our allies and the detainees themselves. Resolution of these concerns is increasingly important as the United States continues its war against al Qaeda.

The Terroristsâ€™ Court
New York Times - 7/11/2007
NEARLY six years after 9/11, the governmentâ€™s system for detaining terrorists without charge or trial has harmed the reputation of the United States, disrupted alliances, hurt us in the war of ideas with the Islamic world and been viewed skeptically by our own courts. The two of us have been on opposite sides of detention policy debates, but we believe that a bipartisan solution that reflects American values is possible. A sensible first step is for Congress to establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure.

The Anticlimactic Trial of Jose Padilla
Jurist - 5/15/2007
The central problem with the federal criminal prosecution of one-time alleged â€œdirty bomberâ€ Jose Padilla, now underway in Miami, is that the trial itself will not provide any resolution to the real question that the Padilla case has always raised: Whether the U.S. government can subject U.S. citizens arrested on U.S. soil to incommunicado military detention (and, allegedly, to mental and physical abuse while in military custody).

The Case for a National Security Court
The Atlantic - 2/27/2007
This problem is one that only Congress can solve: how to handle appeals by foreigners who are detained indefinitely as enemy combatants by U.S. forces abroad but who claim to be innocent civilians. Despite two new laws over the past 14 months, Congress has not yet devised a process that is either effective in catching and incarcerating bad guys or fair in the exacting eyes of world opinion.

Military Commissions: War Crimes Courts or Tribunals of Convenience?
Jurist - 2/21/2007
One of the most controversial legal issues related to the US "Global War on Terror" has been the decision by President Bush to establish military commissions to try â€œenemy combatants.â€ Serious questions related to the procedures originally established for these military tribunals culminated in the Supreme Courtâ€™s decision last June in Hamdan v. Rumsfeld to invalidate the original construct for the commissions. Last week, however, trials by military commission were formally re-initiated when President Bush issued an executive order to try alien enemy combatants under the terms of the new Military Commissions Act.

Online Debate: Are Civilian Courts Appropriate for Prosecuting Individuals Classified as Enemy combatants?
Council on Foreign Relations - 2/12/2007
Legal expert David B. Rivkin and Karen J. Greenberg, executive director of the NYU Center on Law and Security, debate whether civilian courts are the proper place to prosecute these individuals.

Against a US 'Terrorists' Court'
Jurist - 1/12/2007
I would ask all people of goodwill to take a quick look through the various cases that the federal courts have dismissed on state secret, federal officer immunity, political question etc. doctrines where people held in detention have complained of "horrendous" treatment and the courts have shown absolutely no interest in exploring those claims. I would ask you to look at the recent â€œstandingâ€ decision of the Court of Appeals in the ACLU vs. NSA case and recognize that, once an issue is presented in this environment in a national security context, if one complains the courts does not want to hear you as those fearful of having lost rights are not considered sufficiently harmed.

Redeeming Gitmo: The U.S. can take steps to redeem the Gitmo fiasco.
National Review Online - 7/28/2005
Though the administration has performed exceedingly well in balancing myriad issues the last four years, some changes are necessary to improve our ability to conduct operations into the foreseeable future. Three crucial steps will help to gain the requisite national support and international consensus: 1) Article 5 tribunals need to be held immediately for all detainees; 2) the U.S. must establish national-security-court apparatus not very different from Great Britain and France; 3) The U.S. needs to lead the effort in modifying Geneva to better handle the legal issues associated with the jihadists.

If They Lie in Public, What Would They Do in Secret? National Security Courts and Torture Warrants
Counter Punch - 8/20/2004
McCarthy makes a national security court system seem so right, so compelled, but that is only because we have bought the lie that everything is different now. We have bought the line that the world after 9/11 is somehow vastly different than the world before, when all that has really changed is that violence against us has finally arrived at our own doorstep.