President Barack Obama still has not announced his plans for closing the detention camp at Guantanamo Bay, but his strategy may involve charging detainees in federal court, an approach that has serious risks.
Last week, Democrats in the U.S. House of Representatives voted in favor of permitting alleged foreign terrorists held at Guantanamo to enter the United States for the purpose of facing criminal prosecution in our courts. The Senate must pass the measure before the president can sign it into law.
The bill applies only to Guantanamo prisoners who would face charges in federal courts, not to those who would be tried by military commissions. As for how many of the remaining detainees would be tried in courts instead of commissions, one administration official says that the vote “gives us the fundamental ability to close down Guantanamo” — a goal the president set his second day in office, with a one-year deadline toward which he has made little progress. (220 detainees remain, down from 250). This suggests that Obama may plan to make federal court trials a key part of his strategy to close the detention camp.
That would be a mistake. There are several reasons to prefer military commissions to federal courts, which impose far greater evidentiary and discovery burdens, as well as national security risks.
Our criminal justice system places considerable constraint on prosecutors while granting defendants vast due-process rights. The prosecution must meet an extremely high burden of proof, and there are significant limits to the evidence that may be used.
For example, some of the proof against an alleged terrorist might not be admissible because it was obtained either by military interrogation or from a confidential foreign source. Because of such evidentiary restrictions, the government runs the enormous national security risk that a guilty terrorist could be acquitted.
Meanwhile, foreign Guantanamo detainees who are permitted to stand trial in federal court could be accorded the same constitutional rights as U.S. citizens. These may include the right to summon witnesses and access classified information, which can produce significant legal and logistical burdens for the United States government.
There is also the national security risk that trials could reveal classified information, including both sources and methods of intelligence gathering. For example, in the trial of Sheikh Omar Abdel-Rahman for the 1993 World Trade Center bombings, the prosecution had to disclose to the defense a list of unindicted co-conspirators. This list of key terror suspects reached Osama bin Laden within 10 days.
Military commissions, in contrast, alleviate some of these challenges, while still affording the accused substantial due-process rights. For example, certain secondhand statements that would not be permitted in federal court could be allowed in a military trial. Likewise, confessions from interrogations may be admissible. Finally, the commissions are designed to safeguard classified intelligence.
While a candidate, Obama vigorously criticized military trials, calling them an “enormous failure.” The president suspended them his second day in office, a move exalted by the far left.
Then, a few months later, he drastically changed course, announcing his plan to reinstate military commissions with a few adjustments — which generated cries of outrage and betrayal from the same left wing.
But political pressure from within the Democratic party may prompt Obama to bring at least some prosecutions in U.S. courts, as the new bill suggests. Given the considerable risks involved, let’s hope there is more to the president’s ultimate strategy for closing Guantanamo.
Stephanie Hessler is an adjunct fellow at the Manhattan Institute.