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.

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 Guantánamo Bay for Sana, Yemen, carrying Osama bin Laden’s former driver, Salim Hamdan. Once the Bush administration’s poster boy for the war on terror — the first defendant in America’s first military tribunals since World War II — 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
Washington Post - 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.

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 Guantánamo prison may force new rules for trying terrorists
Christian Science Monitor - 11/18/2008
The prospect of closing the prison camp at Guantánamo 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 Guantánamo 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 Guantánamo
International Herald Tribune - 11/18/2008
Closing Guantánamo 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.

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 Obama’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 – 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.

How to Close Guantánamo: A Legal Minefield
Time - 11/11/2008
Many civil rights activists say existing military and civilian criminal courts can handle the Guantánamo cases and decide on the disposition of each of those 255 individuals, despite the Bush Administration's arguments otherwise. But the legal limbo many Guantánamo 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-—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 Guantánamo 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 Guantánamo'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 “a grave threat to our constitutional rights�, 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 “Star Chamber justice� by establishing such a body. Now, however, proponents of what Ben termed “un tribunal d’exception� 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 “when dealing with people accused of being involved in international terrorism against the United States.� 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 Guantánamo Open
New York Times - 10/20/2008
Despite his stated desire to close the American prison at Guantánamo 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 Guantánamo
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 Guantánamo Bay. But the Bush administration is fighting the ruling to avoid having the case become an open window into the outlaw world of President Bush’s detention camps.

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. Guantánamo 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 — especially before they act — 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 Guantánamo - and What "Closing Guantánamo" Means
American Constitution Society Blog - 8/25/2008
Certainly closing Guantánamo means shutting the detention facility and ending the U.S. policy of holding prisoners there. But if that is all that closing Guantánamo means – 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 – then Guantánamo will not really be closed; it will just be moved. And any administration that takes such an approach to closing Guantánamo, 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.

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 Guantánamo Bay, Cuba — using evidence obtained by torture and secret evidence as desired — 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 Wilkerson’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 “traditional law of war principles� 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. Mukasey’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 Guantánamo 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 Guantánamo 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 “a durable, long-term framework for handling detainees—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.� 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 Guantánamo Bay to contest their incarcerations before federal judges — but without ever letting them set foot in the United States because of the “extraordinary risk� 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 — specialized hybrid tribunals that would review the preventive detention of suspected terrorists (both within and outside of the territorial United States) and conduct the detainees’ criminal trials — 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, it’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 Guantanamo’s first trial — 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 Guantánamo -- 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 Guantánamo
New York Times - 6/25/2008
One of Guantánamo’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 — in the first decision of its kind — that Mr. Parhat was improperly labeled an “enemy combatant.�

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 “national security courts�—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. 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 Guantánamo Bay detainees in military tribunals have faltered—indeed, the first iteration of the commissions was cast out by the Supreme Court—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 Guantánamo: The Case Against Preventive Detention
Foreign Affairs - 5/1/2008
The U.S. detention facility at Guantánamo 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
Nearly everyone you talk to these days wants to close Guantanamo, but few agree on what we should do with the roughly 150 remaining detainees.

Camp Justice: Everyone Wants To Close Guantánamo, But What Will Happen to the Detainees?
New Yorker - 4/14/2008
The future of the detention facility on the American naval base at Guantánamo 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 Guantánamo to be closed. So have Condoleezza Rice, the Secretary of State, and Robert M. Gates, the Secretary of Defense; after touring Guantánamo in January, Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, said, “I’d like to see it shut down.� At a news conference in 2006, President Bush said, “I’d like to close Guantánamo.�

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.

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 — 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 Terrorists’ Court
New York Times - 7/11/2007
NEARLY six years after 9/11, the government’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 “dirty bomber� 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 “enemy combatants.� Serious questions related to the procedures originally established for these military tribunals culminated in the Supreme Court’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.

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 “standing� 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.