Constitution Project Welcomes Law Allowing Transfer of Detainees into U.S. For Prosecution

Federal courts are proper venue for charging those still held at Guantanamo

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

WASHINGTON – Earlier today, President Barack Obama signed into law the National Defense Authorization Act for Fiscal Year 2010 (NDAA), a major funding bill that attracted a plethora of national security related amendments. Contained within the NDAA is a provision allowing for the transfer of suspected terrorists held at the Guantanamo Bay detention facility into the United States to face prosecution. The Constitution Project welcomes the provision permitting transfers, which will facilitate the prosecution of terrorist suspects in federal court. Unfortunately, at the same time, the language forbids any detainee’s release from custody into the United States, a decision best left to the courts and the prosecuting authorities. Finally, the law requires advance notice to Congress before transfer to another country.

Also contained within the NDAA is a section titled the Military Commissions Act of 2009, which revises some of the procedures first established by the Military Commissions Act of 2006. While the latest version of the MCA made some improvements from its predecessor, the newly-enacted law still fails to provide defendants with protections that would be required in the traditional justice system.

The following can be attributed to Virginia Sloan, president of the Constitution Project:

“Both chambers of Congress advanced, and the president signed into law, legislation that will allow for those still being held at Guantanamo without charge to finally face justice inside a U.S. courtroom. Our federal courts have proven their ability to handle the most difficult terrorism cases, and to do so without jeopardizing national security. They are the best choice for seeking just outcomes for those that remain at Guantanamo.

“In contrast to the transfer provision, which we welcome, the Military Commissions Act of 2009 raises serious constitutional concerns. Although they are an improvement from the 2006 version, the reformed commissions still fail to provide critical safeguards for the accused that are available in our traditional criminal justice system. This lesser degree of process is not justice. Furthermore, these modest improvements cannot save the irretrievably tainted military commissions. Congress and the president did the right thing by clearing the way for detainees to face charges in the U.S. Now they need to follow through and bring charges in our federal court system.”

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