Press Releases

Establish Article III Court At Guantanamo Bay

The New York City Bar Association has released a white paper report proposing that Congress establish an Article III court at the Guantanamo Bay detention facilities in order to replace the existing “fundamentally flawed” military commissions responsible for prosecuting alleged terrorists held at Guantanamo Bay.

The report takes note of the ineffectiveness of the Military Commissions at Guantanamo Bay, Cuba, which in their 14 years “have garnered a mere 8 convictions – half of which have already been overturned and the remainder of which remain on post-trial appeal…. 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 military commissions have cost more than $6 billion to date and are estimated to cost an additional $400 million each year going forward.”

“By contrast,” the report says, “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.”

Although other alleged terrorists have been tried in Article III courts, the report points out that Congress “has prohibited the Guantánamo detainees from being transferred to the U.S. for trial, and appears to have no appetite for changing this policy.” The white paper’s proposal “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.”

The report delves deeply into the suitability of Article III courts in “adjudicating complex terrorism (and other national security) cases involving Top Secret and higher information while balancing all relevant equities and privileges.” It also outlines the legislative steps necessary to achieve its proposals, which “could be groundbreaking in resolving the delays that have plagued – and will continue to plague – the military commissions.”

Congress must act, the report states, in order to “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.”

The report can be read here: