City Bar Opposes Proposed Legislation that Would Bar Federal Courts from Trying Guantanamo Detainees

In a letter sent to U.S. Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell, the New York City Bar Association expresses “profound concern” with Section 1116 of the 2011 Full-Year Continuing Appropriations Act (“Section 1116”), which, if it becomes law, would terminate funding for the transfer of a non-citizen to the United States for any purpose, thereby preventing Guantanamo detainees from being tried in Article III courts for offenses related to the events of September 11, 2001. Section 1116 was passed in the House of Representatives on December 8th and is soon to be scheduled for a Senate vote.

“Enactment of this bill would deprive the Department of Justice of what has proven to be its most effective enforcement weapon to prosecute and bring suspected terrorists to justice,” reads the letter, which was drafted by the Association’s Task Force on National Security and the Rule of Law and signed by City Bar President Samuel W. Seymour. “It would also be an unprecedented intrusion into the judgment and discretion of the Executive Branch to enforce federal law and would raise grave questions under our system of separation of powers. Moreover, for Congress to intervene to dictate the means for prosecuting a specified person or group of persons may raise serious constitutional issues. Finally, this bill would tend to prolong the stalemate over how and where to prosecute those Guantanamo detainees whom the Administration has identified as being subject to prosecution. Such a result — further delay in bringing accused terrorists to justice — would be at odds with our society’s strong interest in prosecuting, punishing, and passing moral judgment on those who have engaged in terrorist acts in violation of our laws. It would also exacerbate the military and propaganda risks, and the damage to our nation’s reputation, arising from continuing operations at Guantanamo.”

The letter states that “the federal system of civilian courts is well equipped to try individuals who are accused of terrorist activities,” having handled scores of terrorism cases in the past 20 years, “including many that involved complex factual scenarios and difficult political entanglements.” Indeed, since September 11th, “over 300 individuals charged with terrorism crimes have been successfully prosecuted and sentenced in federal court, with more than 30 convicted in 2009 alone. Accordingly, it would be self-defeating to foreclose them as an avenue for prosecuting terrorism,” the letter states.

“Military commissions can be useful tools, but they were not intended to accommodate every criminal or terrorist defendant” or “to afford a venue for all possible grievances concerning war-related crimes,” the letter states. “In fact, military commissions have been largely unsuccessful in reaching any final verdicts or sentences in recent years.”

In conclusion, the Association urges the Senate to reject Section 1116 as “unwise, impractical, and inconsistent with our nation’s principles of justice.”

Read the letter here.