Constitution Project Welcomes Federal Prosecution of Some Detainees While Criticizing Use of Military Commissions for Others

Transfer of some detainees suspected of terrorism offenses into federal court consistent with policies called for in Beyond Guantanamo: A Bipartisan Declaration

CONTACT: Matthew Allee, (202) 580-6922 or

WASHINGTON – Today, Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four other Guantanamo Bay detainees will face prosecution in a federal court in New York for the 9/11 terrorist attacks. Also announced were plans for Abd al-Rahim al-Nashiri, a suspect in the U.S.S. Cole bombing, along with four other detainees, to be tried using military commissions. The Constitution Project welcomes the decision to prosecute in federal courts some detainees suspected of acts of terrorism, while expressing concern about the decision to abandon that system for other detainees in favor of military commissions.

“The Obama administration got this partially right, but unfortunately, also partially wrong. Transferring detainees into the federal justice system is the proper way to handle these cases,” said Virginia Sloan, president of the Constitution Project. “But military commissions risk circumventing our constitutional system of justice in favor of a system rigged for convictions and where justice cannot be a result.”

Just last week, over 125 prominent Americans called on the Obama administration and Congress to support a policy for closing Guantanamo that is consistent with our constitutional principles and our country’s security. Beyond Guantanamo: A Bipartisan Declaration was joined by former members of Congress, diplomats, military officials, federal judges and prosecutors, national security and foreign policy experts, bar leaders, and others.

“I congratulate the Department of Justice for its decision to try high-level individuals suspected of involvement in the 9/11 attacks in the U.S. justice system,” said William S. Sessions, former director of the FBI, federal judge, and signatory to Beyond Guantanamo. “The federal courts are the right place for these trials, with the appropriate experience in balancing the needs of national security and the protection of classified information with the rights of the defendants to a fair trial.”

An effort coordinated by the Constitution Project and Human Rights First, the Declaration supports federal court prosecution of terrorism suspects and opposes indefinite detention without charge. Days after its release, it was cited on the Senate floor by Senator Patrick Leahy, during debate on an amendment that would have barred the transfer of some detainees into the federal justice system for trial. Senator Leahy had this to say:

“We have also seen a strong public declaration in support of trying terrorism offenses in Federal courts, signed by a bipartisan group of former Members of Congress, high-ranking military officials and judges…Experts and judges across the political spectrum have agreed that our criminal justice system can handle this challenge and indeed has handled it many times already.”

Responding to John Cornyn (R-TX), who earlier today criticized the administration’s decision to bring the detainees to the United States for trial, Declaration signatory Bob Barr, a former U.S. Attorney and Republican Member of Congress from Georgia, said:

“Trying these individuals in federal courts for the heinous acts they allegedly committed, is by no means treating them ‘as common criminals,’ as Senator Cornyn inaccurately describes such process. Those federal courts which Senator Cornyn impliedly disparages have in fact and historically, tried, convicted and sentenced to appropriately lengthy prison terms, individuals who have perpetrated serious terrorist acts on our country and our citizens. It is mystifying why Senator Cornyn today has so little faith in the ability of federal prosecutors, federal agents, federal judges, and federal juries, to handle such cases.”

Daniel S. Seikaly, former federal prosecutor and CIA official, and another Declaration signer, said:

“I am proud that the Obama administration has decided to try the cases of high-level 9/11 suspects in federal court. However, I believe that the decision to employ military commissions instead of the federal courts for the USS Cole suspect and other detainees displays a surprising and unwarranted lack of confidence in our constitutional principles. In my view, the decision to circumvent a system that has served our country well for over 200 years undercuts our assertion to other countries that the rule of law is key to a stable and vibrant democracy.”

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