City Bar Supports Legislation to Improve Procedures for Transferring, Prosecuting and/or Releasing Guantanamo Detainees

The New York City Bar Association supports passage, without amendment, of sections 1031 and 1033 of S. 1197, the National Defense Authorization Act for FY 2014, as recently reported out by the U.S. Senate Armed Services Committee, on a bipartisan vote. Section 1031 clarifies and improves the procedures for transfer or release of Guantanamo Bay detainees to foreign countries. Section 1033 allows for the transfer of Guantanamo detainees to the United States for detention and trial. In a report, the Association states, “Both provisions are in the best interests of justice and fairness, the reputation of the United States in the international community, national security, and efficiency and economy.” Section 1031 establishes the procedures for the Secretary of Defense to exercise authority to transfer or release Guantanamo detainees (1) who have been determined under periodic review procedures established by current law to be no longer a threat to national security, (2) whose transfer or release is required by an order of a court or other competent tribunal of the United States, or (3) who have been tried for conduct that also served as the basis for holding them in detention and have either been acquitted or convicted and served their sentence. “By facilitating the transfer of these detainees, Section 1031 will help further the goal of closing Guantanamo, thereby eliminating a symbol of injustice that has been used as a propaganda tool to recruit terrorists, caused friction with our allies, and undermined our nation’s ability to obtain international cooperation in the fight against terrorism. Closing Guantanamo would help restore America’s reputation as a leader for the protection of human rights and the rule of law,” the report states. Section 1033 would provide the executive with the option of using the federal courts as an alternative to military commissions to prosecute detainees. Transfers to the United States would be permitted on the Secretary’s determination that they are in the interest of national security and that precautions have been taken to protect public safety. While military commissions would remain an option for use in appropriate circumstances, “experience has shown that the federal courts have been a far more efficient and successful means of prosecuting persons accused of terrorist offenses, that they are more likely to be viewed by the world community as a fair and just process, and that such prosecutions can be carried out without compromising public safety or national security. Federal prosecutions are also not subject to the legal controversies that continue to surround military commissions,” the report states. The report can be read here: