Attorney general says he favors bringing new detainees to Guantanamo

Attorney general says he favors bringing new detainees to Guantanamo

https://www.washingtonpost.com/world/national-security/attorney-general-says-he-favors-bringing-new-detainees-to-guantanamo/2017/03/09/7bf9e77c-0515-11e7-b9fa-ed727b644a0b_story.html?utm_term=.9b08c00ad342

By Ellen Nakashima March 9

Attorney General Jeff Sessions on Thursday said he is in favor of bringing new enemy combatants to Guantanamo Bay, Cuba, reversing eight years of Obama administration policy aimed at shrinking the population at the military detention facility in the hopes of eventually closing it.

Sessions also said he supports trying detainees there instead of in the federal courts.

“It’s just a very fine place for holding these kinds of dangerous criminals,” he said of the prison.

 “They are like prisoners of war, and prisoners of war can be held throughout the time of the conflict,” Sessions said on the Hugh Hewitt radio show. “At the same time, if they have violated the rules of war, they can be prosecuted. And we’ve got to work our way through this. It would be done, if done, by the United States military.”

He added, “In general, I don’t think we’re better off bringing these people to federal court in New York and trying them in federal court, where they get discovery rights to find out our intelligence and get court-appointed lawyers and things of that nature.”

His comments echo the views he expressed as a U.S. senator on the Armed Services Committee, but now that he is the nation’s top law enforcement official, they are drawing more scrutiny.

“Military commissions have just not been a practical success,” said John Bellinger, legal adviser to the National Security Council and the State Department in the administration of President George W. Bush.

More than 15 years after the attacks of Sept. 11, 2001, none of the five men accused of helping orchestrate the plot have undergone a military trial, much less been convicted. Instead, those prisoners and a handful of others have been locked in years of pretrial hearings.

Bellinger said the reason military commissions have struggled is that they were created fairly recently — after the 9/11 attacks — and there are limited precedents to guide judges. “The judges are acutely aware the world views them as a kangaroo court and are at every opportunity giving the defendants the benefit of the doubt,” he said.

Military tribunal decisions have been reversed by the federal courts, he noted, “so it’s really not clear whether future convictions will be upheld.”

Bellinger added that he hoped that Justice Department officials explain to Sessions the difficulties that the military commissions have faced.

By contrast, hundreds of terrorism suspects have been convicted in federal courts, including al-Qaeda members captured overseas. This week, a trial involving an alleged al-Qaeda operative opened in Brooklyn. The defendant, Ibrahim Suleiman Adnan Adam Harun, whose nom de guerre is Spin Ghul, is accused of a 2003 attack in Afghanistan that killed two U.S. troops.

Courtney Sullivan, who has prosecuted terrorism cases in federal courts and at Guantanamo, said she thinks in some cases the federal courts are the better venue because, among other things, the judges have more experience and can move through pretrial proceedings more quickly. “If the 9/11 case had stayed in the Southern District of New York, where the five co-conspirators were indicted in December 2009,” she said, “the trial would have been completed by now.”

Lawyers questioned Sessions’s assertion that federal courts are unable to handle defendants’ requests for discovery without exposing sensitive intelligence.

“It is clear that there has been extensive litigation and assertion of rights to pretrial discovery” by Guantanamo defendants, “and if anything, the federal court system has shown itself to be more willing to draw a line and bring to a close pretrial discovery,” said a former senior administration official, speaking on the condition of anonymity because of sensitivities with his current employer.

Pursuing prosecutions of Islamic State members in military commissions or holding them at Guantanamo Bay opens the prospect of judicial review of the 2001 authorization for the use of military force and whether it properly applies to the group, analysts said.

“The statutory footing to hold ISIS members is pretty strained” under the AUMF, Bellinger said, using an acronym for the Islamic State.