Media Criticism

U.S. News Gets it Wrong on Guantanamo and Foley's Killer

By Benjamin Wittes
Tuesday, August 26, 2014, 11:27 AM

If terrorist capture comes, can a debate over Guantanamo vs. federal court be far behind?

Apparently not. This time, the debate is coming even before the terrorist's capture---or even his positive identification. And U.S. News and World Report, at least, is getting the answer wrong.

The magazine reports that "Legal experts say it’s possible the jihadist who beheaded American journalist James Foley will be brought to Guantánamo Bay and tried by the U.S. military."

Um, no, actually. It isn't possible---at least not without a major change in policy.

The story quotes two such legal experts:

Mike Newton, a professor of the practice of law at Vanderbilt Law School, says Guantánamo may be an appealing option if the culprit is captured from the Islamic State's realm in eastern Syria and northwestern Iraq.

“The debate you’re going to have is whether you put him on trial in normal federal court or whether you take him to the military commissions at Guantánamo,” Newton tells U.S. News. “Part of the answer will be the sourcing of the evidence – if you’ve got evidence that you can get through the federal rules of evidence, great, [but] the rules of evidence at Guantánamo are different.”

A primary difference, he says, is "in layman terms, you can admit hearsay" in the military proceedings.

. . .

Erwin Chemerinsky, dean of the University of California at Irvine School of Law and a defense attorney for a Guantánamo inmate, agrees that the U.S. base in Cuba is a possible destination for the suspect.

“Assuming the government could apprehend the killer, I, too, could imagine the government placing the individual in Guantánamo and if tried, it would be before a military tribunal,” he says. “Obviously, the authority for this would be challenged, but I easily could imagine that would be the government’s choice.”

What neither expert mentions is that the Obama administration has a clearly-stated policy against bringing new detainees to Guantanamo---something it has never done. What's more, Congress's efforts to restrict transfers from Guantanamo have made bringing anyone new to the base a perilous enterprise, since doing so effectively guts executive flexibility in the subsequent disposition of the detainee's case. So whatever happens with Foley's killer---assuming we identify him and assuming also that we capture him---one thing that will not happen is that he will ever set foot in Guantanamo Bay.

I would also bet my left hand that he will not face trial by military commission. The Obama administration has not sought to use military commissions for a single non-legacy case. In each case of a new capture, detainees have found their way into the custody of civilian law enforcement and prosecution in U.S. federal courts. Why? Both because the administration is keen to return to peacetime authorities to the extent that it can and because the performance of the federal courts has been faster and more confidence-inducing than has the performance of the military commissions. I would not be surprised to see a non-legacy case eventually show up in a military commission (somewhere other than Guantanamo), but it won't be a case like this one---which does not involve Al Qaeda or the Taliban or a clearly-AUMF covered group---and involves the relatively simple murder of an American citizen that can be tried in federal court.