Bringing Terrorists to U.S.

The Obama administration has announced that the first of the Gitmo detainees to be tried in federal civilian courts will be moved to New York City and tried here. This will require an indictment, and will thus trigger the full panoply of federally-guaranteed rights and privileges that any criminal defendant receives in any court in the U.S.

While some have characterized this as a political decision–and it does have political implications because of strongly held opinions on both sides of it–it is really the lawful compliance by the DoJ and the DoD with six SCOTUS decisions on Gitmo. The entire Gitmo premise–go to Cuba and avoid the Constitution, treaties, federal laws, and federal courts–was flawed from the start. And in all six challenges to Gitmo in SCOTUS, the Bush administration lost.

The government’s efforts to comply with these six SCOTUS decisions produced the Military Commissions Act of 2006, a portion of which has already been declared unconstitutional by SCOTUS. This abominable law permits hearsay (for example, “Someone told me that the defendant committed acts of terrorism, but the person who told me this is not here.”), and evidence obtained under torture to be admitted in court. The Act also allows the Secretary of Defense to replace judges with whose rulings he disagrees, denies the defendant the right to confront all the evidence against him, and–in a new low–permits indefinite incarceration of defendants after ACQUITTAL.

The Obama administration is attempting to accommodate all the SCOTUS rulings and the Constitution; since the worst case scenario would be to obtain a conviction only to have it overturned for lack of due process. Only a trial in a federal district court can accomplish this.