Converting Guantánamo Bay Military Commissions Into An Article III Court

May 21, 2020

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Hon. Mitch McConnell
Majority Leader
U.S. Senate
S-230, The Capitol
Washington, DC 20515

Hon. Nancy Pelosi
Speaker
U.S. House of Representatives
Rayburn House Office Building
Washington, DC 20515

Re:      Converting Guantánamo Bay Military Commissions Into An Article III Court

Dear Majority Leader McConnell and Speaker Pelosi:

The U.S. Military Commissions in Guantánamo Bay, Cuba were created to provide legal proceedings for “enemy combatant” detainees. Their purpose was to bring perpetrators to swift justice within the bounds of due process and provide closure to the victims’ families. However, the Military Commissions have fallen far short of these goals.

The proceedings are slow, ineffective, and lacking in transparency. Pre-trial proceedings alone are approaching two decades without resolution and half of the convictions by Military Commission have been reversed on appeal. Prosecuting detainees in Military Commission proceedings means accepting that victims’ families may never see cases resolved, that defendants will not receive a speedy trial, and that Guantánamo will have another excuse to remain open despite overwhelming justification for its closure. In stark contrast, Article III courts have delivered fast, fair, and effective justice to nearly 700 terrorism cases since 9/11.

The solution to this problem is typically framed as binary: either permit detainees to come to the United States to be tried before Article III courts or continue to hear their cases in Military Commission proceedings. Indeed, the New York City Bar Association has advocated for Guantánamo detainees to be tried before federal courts in the United States. However, Congress has prohibited these detainees from being transferred to the U.S. for trial in Article III courts. We propose a third solution: bringing Article III proceedings to Guantánamo. The enclosed report explains the potential benefits and legal support for this plan, and also considers the logistical issues it presents.

While this approach would restore efficiency and integrity to the Guantánamo proceedings, the plan also presents political and logistical challenges. Congress would have to appropriate funds for infrastructure improvements. Currently, members of the press and legal observers are required to stay in tents when visiting; both the prosecution and defense counsel lack adequate, sanitary office space to build their cases; and habitable housing is in very short supply.  Establishing a federal court at Guantánamo also risks legitimizing the continued existence of Guantánamo’s detention center.

While these shortcomings require careful consideration, we believe that bringing an Article III court to Guantánamo remains the best available solution to improving the status quo. The expense required to establish efficient Article III proceedings would still be less than the expense to taxpayers of continuing to fund ineffective and slow military commissions for decades to come. Additionally, the risk of legitimizing Guantánamo’s existence would be offset by removing the Military Commissions as a pretext for keeping Guantánamo open longer.

With an appreciation for the complexity of the problem, we ask lawmakers to consider this proposal for a possible resolution. We also invite members of the legal and policy community to contribute to the dialogue so that we can one day arrive at a resolution that is consistent with the principles of due process and swift justice that underpin our legal system.

Thank you for your consideration.

Respectfully,

Erik L. Wilson, Chair
Military & Veteran Affairs Committee

Harry Sandick, Chair
Federal Courts Committee

Lauren Melkus, Chair
International Human Rights Committee

Stephen L. Kass, Chair
Task Force on the Rule of Law

Cc:

Hon. Charles Schumer, Democratic Leader, U.S. Senate
Hon. Kevin McCarthy, Republican Leader, U.S. House of Representatives
Hon. James Inhofe, Chair, U.S. Senate Armed Services Committee
Hon. Jack Reed, Ranking Member, U.S. Senate Armed Services Committee
Hon. Adam Smith, Chair, U.S. House of Representatives Armed Services Committee
Hon. Mac Thornberry, Ranking Member, U.S. House of Representatives Armed Services Committee
Hon. Lindsey Graham, Chair, U.S. Senate Judiciary Committee
Hon. Dianne Feinstein, Ranking Member, U.S. Senate Judiciary Committee
Hon. Jerrold Nadler, Chair, U.S. House of Representatives Judiciary Committee
Hon. Jim Jordan, Ranking Member, U.S. House of Representatives Judiciary Committee

I.  EXECUTIVE SUMMARY[1]

It has been nearly 19 years since 9/11, and 14 years since the U.S. Military Commissions at Guantánamo Bay, Cuba (“Guantánamo”) were created.  Since then, the military commissions have garnered a mere 8 convictions – half of which have already been overturned and the remainder of which remain on post-trial appeal.  Khalid Sheikh Mohammed and the other alleged 9/11 masterminds have been mired in pre-trial proceedings for nearly a decade and are years away from a trial expected to last 3-5 years and be followed by another 10-15 years of appeals.  The military commissions have been plagued by scandals that cast serious doubt on whether they can provide fair and impartial justice or secure convictions that can survive appeal.  The D.C. Circuit recently vacated nearly 4 years of decisions in the U.S.S. Cole bombing case due to “an intolerable cloud of partiality” and declared there to be a “powerful case” for dissolving the military commission entirely.[2]  By contrast, traditional Article III courts have secured more than 660 terrorism convictions since 9/11, with a more than 90% conviction rate, few reversals, and no notable scandals.  In an Article III court, Khalid Sheikh Mohammed and the other alleged 9/11 masterminds could have already been prosecuted and sentenced for capital crimes-with all appeals completed-years ago.  The military commissions have cost more than $6 billion to date and are estimated to cost an additional $400 million each year going forward.  The current situation at Guantánamo is untenable.  Something needs to change.

The New York City Bar Association (“City Bar”) has long believed that the military commissions are fundamentally flawed, the detention facilities at Guantánamo should be closed, and the prosecution of alleged terrorists should be conducted in Article III courts.[3]  Congress, however, has prohibited the Guantánamo detainees from being transferred to the U.S. for trial, and appears to have no appetite for changing this policy.  Members of both political parties have voiced strong opposition to bringing the Guantánamo detainees to the U.S. for trial, and a substantial majority of the American public would rather see the detainees remain at Guantánamo for trial.[4]  There is a strong possibility that the detention facilities at Guantánamo will remain open and that detainees’ status as enemy combatants (with all the current legal implications thereof) will remain unchanged.  Thus, as a practical matter, the legal community should explore alternatives to improving due process and the rule of law at Guantánamo that account for these political realities.

This white paper proposes one alternative solution: to bring an Article III court to the Guantánamo detainees.  In short, this paper proposes to create an Article III court on the military base at Guantánamo Bay, where the military commissions are currently being held, and to convert the failing military commissions system into a faster, fairer, and far more successful Article III proceeding.[5]

While we expect this proposal will still face heavy political headwinds, we believe it presents a potentially workable solution that could garner support as a compromise position between those in Congress who want to keep the Guantánamo detention facilities open, and those who want the detainees to be prosecuted by Article III courts.  At the very least, we hope this white paper facilitates a serious and thoughtful conversation on how America can finally bring closure and justice to the victims of terror and their surviving family members, while working to reaffirm America’s commitment to the fundamental values of due process, transparency, and the rule of the law.

This white paper analyzes the legal possibilities, practicalities, and implications of converting the military commissions currently in use at Guantánamo into an Article III court.  First, we provide general background regarding the history of the Guantánamo military commissions, the issues that have arisen, and the approaches that have previously been explored with respect to these issues.  Second, we analyze the legal issues implicated in a proposed conversion of the Guantánamo military commissions into an Article III court.  Finally, we set forth the steps to be taken to convert the Guantánamo military commissions into an Article III court and implement its adjudication of cases.  We conclude that the Guantánamo military commissions may be converted into an Article III court in a few steps:

1. Congress would amend 28 U.S.C. § 112 (which divides New York State into separate judicial districts) to temporarily expand the jurisdiction of the Southern District of New York to encompass the U.S. Naval Base at Guantánamo and designate Guantánamo as a place of holding court for limited purposes.
2. The cases presently pending before the military commissions would be assigned to judges sitting within the Southern District of New York or, by designation, to judges who sit outside the District.
3. The judges would hold case management hearings and set paths forward for proceeding to trial and final judgment.

I.  BACKGROUND

a.  Establishment of the Guantánamo Military Commissions

The United States has utilized military commissions since at least the 1860s.  Indeed, during the Civil War and World War II, military commissions were utilized in the United States to prosecute thousands domestically and abroad.[6]  The Guantánamo military commissions were authorized by President George W. Bush in 2001, shortly after the terrorist attacks on September 11, 2001, as part of a broad set of actions aimed at expanding Executive power to use military force, gather intelligence, and detain individuals suspected of terrorist activity against the United States.

By Executive Order issued in November 2001 (the “2001 Executive Order”), President Bush authorized then-Defense Secretary Donald Rumsfeld to form military commissions anywhere in the United States or abroad.[7]  These commissions were vested with trial jurisdiction over noncitizen members of al Qaeda and others who had “engaged in, aided or abetted, or conspired to commit acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States.”[8]  The 2001 Executive Order further authorized the commissions to try “any and all offenses triable by military commission.”[9]  Since November 13, 2001, the United States has relied on military commissions to try detainees at the naval base at Guantánamo.[10]

b.  Adjudications in the Guantánamo Military Commissions

Despite diligent efforts by the commissions’ lawyers, judges, and other court personnel, the military commissions have proven inefficient, resulting in only eight convictions since September 11, 2001, all of which were uncontested (pursuant to pleas).  Three of these convictions were later overturned or overruled, and one partially vacated.[11]  No contested trials have proceeded to conclusion.[12]  In short, the process by which these complex cases may reach closure is moving at an excruciatingly slow pace.[13]

As of this writing, there are forty detainees being held at Guantánamo, all of whom have been imprisoned for more than ten years.[14]  Nine detainees are currently being tried by the military commissions, or have been convicted by the military commissions and are still being held at Guantánamo.[15]  Five detainees are approved for release.[16]  The remaining twenty-six detainees have not been charged.[17]  And the cases that are proceeding through the military commissions have been marked by significant setbacks and procedural delays.

For example, in April 2019, in the case against Abd Al-Rahim Al-Nashiri, the alleged mastermind of the 2000 bombing of the U.S.S. Cole and other al Qaeda bomb plots, the U.S. Court of Appeals for the District of Columbia Circuit vacated more than two years of commission orders issued by former military judge Colonel Vance Spath-totaling more than 460 orders-as a result of Spath’s application to the U.S. Department of Justice for a position as an immigration judge while also overseeing the case.[18]  The Court held that Spath’s job application “cast an intolerable cloud of partiality over his subsequent judicial conduct.”[19]  More broadly, the Court rebuked the Al-Nashiri military commission, stating: “[C]riminal justice is a shared responsibility.  Yet in this case, . . . all elements of the military commission system . . . failed to live up to that responsibility.”[20]  Further, the Court noted that “Spath’s lapse [was not] a one-time aberration, as Al-Nashiri’s is not the first meritorious request for recusal that our court has considered with respect to military commission proceedings.”[21]  Notably, the Court also indicated that there was a “powerful case for dissolving the current military commission [in Al-Nashiri’s case] entirely.”[22]

The trial for Khalid Sheikh Mohammed and the other 9/11 detainees is currently set for 2021-20 years after 9/11.  That trial is expected to take three to five years,[23] but many with knowledge of the military commissions doubt that timeline is realistic.[24]  And even if the trial results in convictions, the ensuing appeals could take another 15 years to resolve.[25]

By contrast, Article III courts have, since 9/11, successfully adjudicated more than 660 terrorism-related cases to conclusion[26] in sixty-three district courts across the country.[27]  Indeed, Article III courts have been used to prosecute not only terrorism-related offenses committed within the United States, but also terrorism-related offenses committed outside the United States by enemy combatants.  Notable enemy combatants convicted in Article III courts include: Osama bin Laden’s son-in-law and al Qaeda spokesman Sulaiman Abu Ghaith, who was convicted of multiple terrorism offenses and sentenced to life imprisonment; Ahmed Khalfan Ghailani, an al Qaeda operative who was convicted for his role in the 1998 bombings of the U.S. embassies in East Africa and sentenced to life imprisonment; Ibrahim Suleiman Adnan Adam Harun, an al Qaeda operative who was convicted for his participation in attacks on U.S. and coalition troops in Afghanistan and for conspiring to bomb the U.S. embassy in Nigeria; Ahmed Abdulkadir Warsame, an al Shabaab operative who pleaded guilty to multiple terrorism offenses; and Saddiq Al-Abbadi and Ali Alvi Al-Hamidi, al Qaeda members who engaged in attacks against U.S. military forces in Afghanistan.[28]

Contrary to the slow pace of the Guantánamo military commission proceedings, the Article III terrorism proceedings have resolved expeditiously. For instance, Abu Ghaith was convicted around one year after he was transferred to U.S. custody; Ghailani was convicted a year and a half after his transfer to New York from Guantánamo; and Warsame pleaded guilty within eight months of his capture.[29]

Although the Obama Administration vowed (albeit unsuccessfully) to close the detention facilities at Guantánamo,[30] the Trump Administration has made clear that it plans to keep the facilities open.[31]  Thus, improving the effectiveness of the legal proceedings for Guantánamo detainees remains critical.

c.  Evolution of the Procedures for the Guantánamo Military Commissions

Procedures for the Guantánamo military commissions were issued in March 2002, and the first charges were brought in February 2004.[32]  In June 2006, the legality of the Guantánamo military commissions came under scrutiny when Salim Hamdan sought habeas corpus in federal court.

In Hamdan v. Rumsfeld, the Supreme Court struck down the military commission convened to try Hamdan, holding that it lacked the power to proceed “because its structure and procedures violate both the UCMJ [the “Uniform Code of Military Justice”] and the four Geneva Conventions signed in 1949.”[33]  Several months later, Congress established new legislative authority for the commissions through the Military Commissions Act (“MCA”) of 2006.[34]  In 2009, Congress significantly updated and amended the MCA, providing new procedural rules to govern the military commissions.[35]

In 2019, the Secretary of Defense published an updated Manual for Military Commissions (the “2019 Revised Edition”), which sets forth the rules that govern the procedures and punishments in all trials by military commissions (the “Rules for Military Commissions,” or “RMC”).[36]  The Department of Defense’s website provides a chart comparing the rules of procedure that govern military commissions, courts-martial, and Article III courts.[37]  The most significant differences between the RMC and the rules that govern criminal proceedings in Article III courts are outlined in the following table.

d.  Congressional Ban on Transferring Detainees from Guantánamo to the United States

Guantánamo Bay detainees presently cannot be tried in Article III courts.  This is because no Article III court exists at Guantánamo and detainees by law may not be transferred to the United States for trial.  Since 2010, the National Defense Authorization Act (“NDAA”) has prohibited the use of funds to transfer or release individuals detained at Guantánamo to the United States and its territories.[43]  But the NDAA does not prohibit detainees from being tried at Guantánamo in an Article III court.

The simplest and best available option for converting the Guantánamo military commissions proceedings into Article III court proceedings would be to permit the transfer of the accused detainees to the United States for trial in federal court-as we have proposed multiple times.  As set forth above, however, the purpose of this white paper is to explore solutions that assume the Guantánamo detention facilities will remain open and detainees continue to be statutorily prohibited from being brought to the U.S. for trial.  Some commentators have also floated the option of establishing videoconferencing between the detention facility and Article III courts for various trial proceedings.[44]

II.  LEGAL ANALYSIS

Article III courts have proven capable of adjudicating complex terrorism (and other national security) cases involving Top Secret and higher information while balancing all relevant equities and privileges, including protecting attorney-client privilege.[45]  An Article III court established at Guantánamo would allow the government to utilize the existing court infrastructure (including already-funded upgrades[46]) in place at Guantánamo, with its unique technical features designed to ensure the secrecy of highly classified information.[47]  Moreover, an Article III court, unlike the military commissions, could rely on settled law and established procedure.[48]  As discussed below, there is no legal impediment to establishing an Article III court at Guantánamo.

a.  Congress Has Legal Authority to Establish an Article III Court at Guantánamo

The U.S. Constitution permits Congress to establish Article III courts outside of the United States.[49]  Specifically, Section 2, Clause 3 of Article III provides:

The Trial of all Crimes, except in Case of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.[50]

Likewise, Congress has exercised its Article III authority by providing in 18 U.S.C. § 3238 that “the trial of all offenses begun or committed . . . outside of the jurisdiction of any particular State or district, shall be in the district in which the offender . . . is arrested or is first brought.”[51]  Federal courts have been held to have criminal jurisdiction over defendants whose conduct occurred outside of the territorial jurisdiction of the United States,[52] including enemy combatants who committed terrorism-related offenses outside the United States.[53]  In fact, approximately 17 percent of the terrorism-related cases tried in federal courts have involved a defendant who was arrested or captured overseas.[54]

The detainees at Guantánamo were declared enemy combatants and were brought to Guantánamo for long-term detention and trial.[55]  Thus, prosecution of the detainees at Guantánamo through Article III courts would be consistent with: (i) Article III of the Constitution, which permits Congress to designate locations for trials outside the 50 states; and (ii) Section 3238, which implements Article III and permits defendants to be tried in locations where they are first brought.

Congress undisputedly has the authority to establish Article III courts outside of the fifty states.  In 1966, Congress created a new Article III court in Puerto Rico[56]-an unincorporated territory of the United States.[57]  The creation of Puerto Rico’s Article III court was the result of repeated recommendations before Congress by the Judicial Conference of the United States (the national policymaking body for the federal courts) in 1961, 1963, and 1965, as well as endorsements by the U.S. Departments of Justice and the Interior.[58]

The ability of the U.S. to establish an Article III court at Guantánamo also has precedent.  Indeed, in the Supreme Court’s 2008 decision in Boumediene v. Bush-in which the Court held that detainees at Guantánamo are entitled to the privilege of habeas corpus to challenge the legality of their detention-the Court took notice of “the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory.”[59]  The Court further stated that Guantánamo detainees “are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government.”[60]  In support of this conclusion, the Court emphasized the political history of Guantánamo Bay, noting that “[t]he United States has maintained complete and uninterrupted control of the bay for over 100 years.”[61]  The Court also relied on the terms of the 1903 lease between the United States and Cuba, which states explicitly that “the United States shall exercise complete jurisdiction and control over and within said areas.”[62]  On this basis, the Court concluded that although Cuba retained “ultimate sovereignty”[63] over Guantánamo, the United States had “total military and civil control”[64] and “continued to maintain the same plenary control it had enjoyed since 1898.”[65]  The Court held that the “basic charter” of the United States, including the restraints set forth in the Constitution, “cannot be contracted away.”[66]  Importantly, the Court also concluded that no law other than U.S. law applies to the Guantánamo naval base.[67]

In sum, under Article III, 18 U.S.C. § 3238, and applicable case law, Congress has authority to establish a federal court at Guantánamo.

b.  Establishment of an Article III Court at Guantánamo Is Consistent with the Sixth Amendment

Transfer of the Guantánamo military commission proceedings to an Article III court is consistent with the Sixth Amendment,[68] which provides that the accused shall enjoy, among other things, (1) “the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law”; and (2) the right to have compulsory process for obtaining witnesses in his favor.[69]

i. Venue and Jury Trial Provisions of the Sixth Amendment

The Sixth Amendment, in guaranteeing individuals the right to a jury trial in criminal prosecutions, provides that a jury shall be selected from a pool of individuals “of the State and district wherein the crime shall have been committed.”[70]  However, pursuant to Article III, Section 2, Clause 3, where a crime is committed outside of the United States, the jury may consist of individuals from the jurisdiction in which Congress has designated the trial court to sit.  In United States v. Williams,[71] the Eleventh Circuit affirmed the criminal prosecution in a United States district court of a foreign national who engaged in sexual abuse outside the territorial jurisdiction of the United States and subsequently was arrested in the United States.  The Court reasoned that, although “[t]he Sixth Amendment provides that crimes which have been committed within a state and district shall be tried there,” “Article III contemplates that offenses against the laws of the United States may be committed somewhere other than in a state and that in such cases Ôthe Trial shall be at such Place or Places as the Congress may by Law have directed.'”[72]  Because “Congress has exercised the authority granted to it by Article III by providing in 18 U.S.C. § 3238 that Ô[t]he trial of all offenses begun or committed upon the high seas, or elsewhere outside of the jurisdiction of any particular State or district, shall be in the district in which the offender . . . is arrested or is first brought,” and because “[i]t [was] undisputed that Williams was arrested in the Middle District of Georgia,” “his prosecution in that district therefore was consistent with the dictates of both § 3238 and the Sixth Amendment’s venue provision.”[73]  Likewise, jury trials have regularly been used to try enemy combatants in federal district courts for crimes committed outside of the United States.[74]  Because Congress has authority under Article III and 18 U.S.C. § 3238 to establish a federal court at Guantánamo, it is consistent with the Sixth Amendment to try Guantánamo detainees by a jury selected from a pool of individuals from the jurisdiction in which Congress designates the Guantánamo federal court to sit.[75]

ii. Compulsory Process Provision of the Sixth Amendment

The Sixth Amendment also provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor.”[76]  Trying Guantánamo detainees in an Article III court would not interfere with this right.

To be sure, the compulsory process right in federal district court is circumscribed “by the ability of the district court to obtain the presence of a witness through service of process.”[77]  The district court lacks process power, for instance, to compel the appearance of a foreign national located abroad.[78]  But the bar for compulsory process challenges in such circumstances is high, and the defendant’s Sixth Amendment “right to present evidence is not absolute.”[79]  Rather, “[b]oth state and federal cases [require] that evidence for which compulsory process is sought must be material and favorable before a constitutional problem is presented.”[80]  And “[i]t is well established . . . that convictions are not unconstitutional under the Sixth Amendment even though the United States courts lack power to subpoena witnesses, (other than American citizens) from foreign countries.”[81]

Moreover, a Guantánamo detainee tried in an Article III court would enjoy the right to have compulsory process for obtaining the appearance of witnesses who reside in the United States or are U.S. citizens located abroad.  An Article III court could compel the testimony even of other enemy combatants held at Guantánamo.  Where witnesses are in the custody of the U.S. government, courts have found that a testimonial writ (i.e., a writ of habeas corpus ad testificandum) may be issued to the witness’s custodian to obtain the witness’s testimony.[82]

iii. Potential Impacts of Trying Guantánamo Detainees with Sixth Amendment Protections

As noted supra § I.C., trying Guantánamo detainees in an Article III court with Sixth Amendment protections would result in some additional protections for the detainees, such as a requirement for a unanimous verdict and the exclusion of certain hearsay evidence, among other things.[83]  As former Attorney General Eric Holder made clear in 2011-after Congress prohibited the transfer of Guantánamo detainees to the U.S. to stand trial in mainland Article III courts-these additional protections would present no obstacle to their successful prosecution.[84]

The number of years that have passed since the detainees were initially apprehended, however, raise a variety of concerns related to the Sixth Amendment’s guarantee of a right to a speedy trial.[85]  Under the MCA, the Guantánamo detainees do not have a right to a speedy trial.  If detainees gained the Sixth Amendment’s right to a speedy trial, however, it may not provide them with any practical benefit:  other Article III terrorism prosecutions with similar delays were found to not violate the Sixth Amendment’s speedy trial protections.[86]

III.  STEPS TO CONVERT THE MILITARY COMMISSIONS INTO AN ARTICLE III COURT

As discussed below, to convert the military commissions into an Article III court, the following steps would be taken:

1. Congress would amend 28 U.S.C. § 112 to expand the jurisdiction of the Southern District of New York to encompass the U.S. Naval Base at Guantánamo and designate Guantánamo as a place of holding court for limited purposes.
2. The cases presently pending before the military commissions would be assigned to judges sitting within the Southern District of New York or, by designation, to judges who sit outside the District.
3. The judges would hold case management hearings and set paths forward for proceeding to trial and sentencing.

a.  Incorporate Guantánamo Into the S.D.N.Y. (or Other Appropriate District)

Congress may convert the military commissions at Guantánamo into an Article III court by expanding the jurisdiction of an existing district court to encompass the U.S. Naval Base at Guantánamo.  The Southern District of New York could be an ideal choice for prosecuting Khalid Sheikh Mohammed and the other 9/11 detainees because it is the site of World Trade Center 9/11 attacks, it has the deepest and most diverse jury pool, it has secured more terrorism-related convictions over the past two decades than nearly all other districts, and had already been preparing to hold the 9/11-related trial before Congress prohibited such trials in 2011.[87]  Other districts that also warrant special consideration are the District of D.C. (the D.C. Circuit already adjudicates appeals from the Guantánamo military commissions and thus has experience handling these cases), the Eastern District of New York, and the Eastern District of Virginia (both of which have prosecuted significant numbers of high-profile terrorism cases; the Eastern District of Virginia was also preparing to bring the 9/11 detainees to trial before Congress blocked such trials in 2011[88]).

Specifically, to incorporate Guantánamo into the Southern District of New York, Congress would amend as follows the statute that sets forth the Southern District of New York’s jurisdiction-namely, 28 U.S.C. § 112(b) (proposed amendments in bold and underlined):

(b) The Southern District comprises the counties of Bronx, Dutchess, New York, Orange, Putnam, Rockland, Sullivan, and Westchester and concurrently with the Eastern District, the waters within the Eastern District, and the United States Naval Base, Guantánamo Bay, Cuba.

Court for the Southern District shall be held at New York, White Plains, and in the Middletown-Wallkill area of Orange County or such nearby location as may be deemed appropriate, and at the United States Naval Base, Guantánamo Bay, Cuba, provided that the Guantánamo location shall hold court for the Southern District solely for the purposes of any proceeding that was brought or otherwise would have been brought under the Military Commissions Act of 2006, as amended by the Military Commissions Act of 2009.

Alternatively, Congress could create an entirely new Article III court at Guantánamo and incorporate that court into an existing judicial district and circuit, by (a) amending 28 U.S.C. §§ 81-144 to incorporate the new court into an existing judicial district; and (b) amending 28 U.S.C. §§ 41-49 to incorporate the court into the corresponding judicial circuit.[89]

Importantly, incorporating Guantánamo into the Southern District of New York (or other appropriate district) would preserve U.S. national security interests. Article III judges automatically have security clearance that allows them access to classified information, enabling them to hear sensitive terrorism cases without concerns of a security breach.[90]  The Litigation Security Group of the federal judiciary facilitates security clearances for court staff, and prosecutors commonly have security clearances as well.[91]  Judges also have the ability to dictate special security precautions to ensure limited access to classified materials, ensuring there are no security breaches.[92]  Further, the Southern District of New York, the District of D.C., the Eastern District of New York, and the Eastern District of Virginia have decades of experience implementing the precautions associated with ensuring that classified information is not exposed.

Additionally, incorporating Guantánamo into an existing judicial district would streamline the jury selection process.  Pursuant to the Jury Selection and Service Act of 1968, juries must be “selected at random from a fair cross section of the community in the district or division wherein the court convenes.”[93]  There are many more jury-eligible individuals residing in New York City, for example, than in Guantánamo Bay.  Thus, a jury in the Southern District of New York would be drawn from a sizable pool and would be a representative cross-section of the community.

Flying the jury to Guantánamo for jury selection and trial is similar to what already occurs in the existing military commissions-attorneys, non-governmental observers, victims’ family members, and others are regularly flown to Guantánamo on chartered commercial flights for judicial proceedings and housed on base.[94]  Thus, from a purely logistical perspective, flying a jury to Guantánamo for jury selection and trial does not appear to present new barriers to creating an Article III court in place of the existing military commissions, particularly in light of the potential time (and thus cost) savings that using an Article III court could provide.[95] Moreover, hearings at which the defendant has no right to be present could take place on the mainland-for instance, in the Southern District of New York-or by videoconference.[96]  We would expect Congress to appropriate funds to address these logistical improvements in any bill incorporating this proposal.

A jury trial at Guantánamo, however, would place unique burdens on the jurors themselves.  As a result, we propose that Congress include in the law establishing the Guantánamo court certain provisions designed to compensate jurors for these burdens.  For example, Congress could grant all jury members serving on Guantánamo trials a hardship stipend to compensate them for their time away from home.  Congress could also authorize the use of federal funds to cover the cost of visits between jury members and their families, and other diversions the Court deems proper.[97]  These expenses (and any aforementioned logistical expenses) would more than offset by the cost savings achieved by using an Article III court-which could shave a decade or more off the time to reach a final verdict, at a savings of approximately $400 million per year.

b.  Assign Pending Cases to Federal District Court Judges

Once the Guantánamo court is established, pending cases will then be assigned to district court judges under the relevant court’s assignment process.  Generally, each district court has its own written plan or system for assigning cases, and the court’s rules and orders regarding case assignments are enforced by the chief judge.[98]  Most district courts assign cases randomly, but cases are sometimes assigned based on case-specific considerations, such as a judge’s special expertise on a certain issue.[99]  It may also be preferable for a smaller number of judges with appropriate clearances and expertise, to volunteer for these cases.

c.  Hold Case Management Hearings

Once a case is assigned to judges on the relevant district court, the judges would hold case management hearings and set paths forward for proceeding to trial and final judgment.  Article III judges routinely hold case management conferences.  We would anticipate that the first step in handling a case presently heard by the military commissions would be for the court to hold such a conference.

Most likely, the record would be transferred to the Article III court in the same way records are typically transferred on appeal from lower courts to the Circuit Courts and Supreme Court.  In fact, the current process for appeal from the military commissions to the United States Court of Military Commission Review already contemplates transfer and consideration of the record below.[100]

IV.  CONCLUSION

In sum, as a legal matter, the military commissions at Guantánamo can be converted into an Article III proceeding.  Such a conversion could be groundbreaking in resolving the delays that have plagued-and will continue to plague-the military commissions.  We respectfully urge Congress, and the legal community, to seriously consider this proposal as way to bring closure to these cases in a far more expedient and fair manner.

Military and Veterans Affairs Committee
Erik L. Wilson, Chair

Federal Courts Committee
Harry Sandick, Chair

International Human Rights Committee
Lauren Melkus, Chair

Task Force on the Rule of Law
Stephen L. Kass, Chair

May 2020