Guantanamo: Prosecutions

Josh Gerstein on Piracy and Terrorism Trials

By Wells Bennett
Monday, February 10, 2014, 3:42 PM

Over at Politico, Josh Gerstein has an interesting piece on the Ali piracy case, and its potential implications for terrorism cases.  The article---which quotes Jen Daskal and Cully Stimson, among others---opens:

The failed prosecution of an alleged Somali pirate — and the fact that that failure could leave him living freely, and permanently, inside U.S. borders — is highlighting anew the risks of trying terror suspects in American courts.

Just a few weeks ago, Ali Mohamed Ali was facing the possibility of a mandatory life sentence in a 2008 shipjacking off the coast of Yemen — an incident much like the one dramatized in the film Captain Phillips. Now, the Somali native is in immigration detention in Virginia and seeking permanent asylum in the United States.

The arguments sketched out thereafter are likely familiar to Lawfare readers; and timely, given the inevitable conclusion to the United States' armed conflict with Al-Qaeda, and the array of legal and policy questions that will accompany it.

A seemingly evergreen subject---which Gerstein discusses---has to do with the legal status of terrorism suspects brought to the United States, from Guantanamo or elsewhere. The scenario is partially hypothetical, in that current law (still) forbids the use of defense funds to bring Guantanamo detainees to the mainland, for any reason; the United States very much is in the business of prosecuting non-Guantanamo people in stateside courtrooms.

We'll be hearing more about the issue from the Administration, and in the coming months.  Recall that Section 1039 of the FY 2014 NDAA requires the executive branch to study and report on

the legal rights, if any, for which an individual detained at Guantanamo ... if transferred to the United States, may become eligible, by reason of such transfer.

By law, the document is due 120 days after the NDAA's enactment on December 26 of last year---late April, according to my back-of-the-napkin estimate.  Stay tuned.