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18 Mar 2010

Politics and Prosecution

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Justice statue, located at the US Courthouse in Lafayette

The bungled process over where to try Guantanamo detainees makes US justice look bad, Peter A Buxbaum writes for ISN Security Watch.

By Peter A Buxbaum in Washington, DC for ISN

US Attorney General Eric Holder announced last November that Khalid Sheikh Mohammed and four other Guantanamo detainees would stand trial in a civilian US district court in New York in connection with charges stemming from the 9/11 terrorist attacks.

But Holder's decision was soon pulled back, after New York Mayor Michael Bloomberg, who at first supported the move, claimed that the security costs to conduct a two-year trial a few blocks from where the World Trade Center once stood would be prohibitive. He was joined by a chorus of Republican members of Congress who argued that military commissions, rather than civilian courts, were the best venues for trying terrorists.

One senator, Lindsey Graham, a South Carolina Republican, has offered the White House a deal under which the detainees would be tried by the military and Graham would not stand in the way of President Barrack Obama's desire to close the notorious Guantanamo Bay detention facility. In short, the process of deciding where to prosecute the detainees has become mired in politics.

The pending decision now appears to be in the hands of the White House, and a final decision, Holder said at a Congressional hearing yesterday, is still weeks away.

There are two issues involved in the decision to prosecute KSM and his cohorts. The first is whether, when, and where to prosecute. The second, which has been overshadowed by the first, is how this decision is being made.

Legal authorities who favor civilian courts concede that military tribunals could be appropriate in some circumstances. Similarly, military commission aficionados recognize that district court could sometimes be the better venue.

But everyone agrees that the ultimate decision should be a matter of prosecutorial discretion, and that the prosecutor's decision must be free of political considerations. Holder's pronouncement presumably should have laid this matter to rest. He is, after all, the prosecutor-in-chief of the US. But that has proved not to be the case.

"The independence of the Justice Department is vital to the American system of justice," Michael Newton, a professor of law at Vanderbilt University in Tennessee, told ISN Security Watch.

Newton, who helped write the rules governing the military commissions, did not support Holder's decision “because the military commissions are a valid forum," and because KSM's pretrial procedures were already underway in Guantanamo.

Prosecutor's should make decisions based on the efficient administration of justice, according to Newton. Factors he considers legitimate include whether a detainee was captured on the battlefield, whether the evidence against the accused is transferable to a civilian court, whether a given case is related to other ongoing trials, and whether proceedings against a given accused have already begun.

"KSM already had military lawyers working on his case," said Newton. "Yanking the case from the commission and into civilian court is inefficient."

No deals

The Constitution Project, a Washington-based advocacy group which is pushing for civilian trials for Guantanamo detainees, allows that military trials could be appropriate, especially when a detainee has been captured on the battlefield.

But politics is to be removed from this decision, according to Virginia Sloan, the group's president. "The Justice Department is supposed to have independent decision-making power over whether to prosecute someone for a crime," she told ISN Security Watch. "There is a long tradition of keeping those decisions at arms’ length from the White House. The decision about prosecuting should not be based on politics but on what the law requires based on the judgment of chief legal officer of country," the attorney general.

Sloan allowed that it is "not entirely unrealistic that the president at least be informed" of an attorney general's prosecutorial decision and be allowed to "express a view." "But the president must understand that the final decision should be made by an independent attorney general," she said.

"It is quite distressing," she added, "that the White House might think that for political reasons it needs to make a deal with a member of Congress and that where detainees are prosecuted would be part of that deal."

Newton argued, however, that the Justice Department did not have "unlimited independence," and that in cases involving national security, "it is appropriate for the president or his deputy to review" the attorney general's actions "and make another decision."

Holder anticipated these issues when he sent a memo to federal prosecutors in May of last year, setting guidelines that would allow Justice Department decisions to "be adequately reviewed and considered" by the White House "free from either the reality or the appearance of improper influence.”

The Justice Department “will advise the White House concerning pending or contemplated criminal or civil investigations or cases when - but only when - it is important for the performance of the president’s duties and appropriate from a law enforcement perspective,” the memo said.

Behind the scenes

It is hard to tell what is going on behind the scenes, but Obama’s press secretary Robert Gibbs has acknowledged that his boss is in the decision-making loop. Perhaps the president is considering only the national security implications of the prosecution. But given the bungled process, the situation doesn't look good for the attorney general, the Justice Department or the president.

Given the international furor surrounding Guantanamo, Sloan believes it is important that prosecutorial decisions, as well as the ultimate verdict, be accepted by the international community.

"If decisions are politicized it will inflame our international relations," said Sloan. "It will make people think the US is not acting fairly or according to law. It will be hard for the US to be a leader on justice and law if politics enters into these decisions."

Peter Buxbaum, a New York- and Washington-based independent journalist, has been writing about defense, security, business and technology for nearly 20 years. His work has appeared in publications such as Fortune, Forbes, Chief Executive, Information Week, Jane’s Defense Weekly, Military Information Technology, Homeland Security, and Computerworld. His website is


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