November 13, 2009 12:27PM

Gitmo Prisoners to NY for Trial

Today, Attorney General Eric Holder announced that he plans to move five prisoners from Guantanamo to New York for a civilian trial. Holder says the prisoners masterminded the 9/11 attacks and will now face the death penalty. 

Some journalists and commentators are calling this move a wholesale repudiation of the Bush policy. Actually, no. Holder also announced that five other Gitmo prisoners will soon be put on trial before a military commission. Thus, the Bush framework essentially remains in place. The Executive will decide on a case‐​by‐​case basis who will be held prisoner (overseas, Gitmo, here in the USA), and who will be tried in civilian court, and who will be tried before a military commission.

By way of background, these prisoner controversies (habeas corpus, waterboarding, trial by commissions) fall into three basic categories: (1) detention/​imprisonment; (2) treatment (including interrogation practices); and (3) trial issues. Today’s announcement concerns trials. 

If there is to be a trial for persons accused of terrorism, it ought to be in civilian court. Courts martial are for persons actually in the U.S. military (the Fort Hood shooter). Military “commissions” are a hybrid that is nowhere mentioned in the Constitution. It is mistake for Obama to retain the commission system because it is (a) dubious to begin with, and (b) can be whimsical with respect to the people that end up there. Even the former Gitmo prosecutor has voiced his objections to the system!

Bin Laden and his cohorts murdered some 3,000 people on 9/11. It is lamentable that they did not all go down fighting at Tora Bora. But we do have to have policies in place for captures. Boiled down, the U.S. should follow the Geneva Convention for prisoners and, for trials, the procedures set out in the Constitution.

For additional Cato work on this subject, go here and here.