After September 11, 2001, George W. Bush established the Guantánamo Bay prison to enable the United States to imprison non-Americans indefinitely outside the reach and protection of both U.S. and international law. The military commissions and their trial procedures, created under the Military Commissions Act of 2006, have been universally condemned by jurists, scholars and human rights specialists as violating minimum fair trial standards and of being a sham intended to secure convictions.
The National Lawyers Guild (NLG) calls on President-elect Barack Obama to, on the first day of his presidency, issue a presidential order closing Guantánamo Bay prison and ending military commissions.
The NLG also urges President-elect Obama to thereafter, ensure that Guantánamo Bay prisoners are released, repatriated, resettled, or brought to trial (if there is probable cause to believe they have committed a crime) in strict accordance with international human rights and humanitarian law, and the principles of fundamental justice pertaining to criminal proceedings including, but not limited to, the Four Geneva Conventions of 1949, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights. The United States has ratified all of these treaties which makes their provisions binding U.S. law under the Supremacy Clause of the Constitution.
The NLG opposes the establishment of special national security courts. Although President-elect Obama said in August, “It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice,” three Obama advisers told the Associated Press that the President-elect is expected to propose a new court system to deal with “sensitive national security cases.” Concerns have been cited about disclosure of classified information in civilian courts and courts-martial.
However, the Classified Information Procedures Act (CIPA) provides a comprehensive and effective method of protecting classified information in existing U.S. courts. CIPA allows a judge to assess the importance of sensitive evidence before it is disclosed in open court and, if necessary, create a nonclassified substitute for use at trial. Former federal prosecutors Richard B. Zabel and James J. Benjamin, Jr. studied the 107 post-9/11 cases and prepared a 171-page white paper for Human Rights First called In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts. They wrote, “[w]e are not aware of a single terrorism case in which CIPA procedures have failed and a serious security breach has occurred.” National security courts, they write, “would give the government more power and make it easier for the government to secure convictions.”
“Guantánamo Bay prison is a legal black hole that has become a symbol of injustice, abuse, and U.S. hypocrisy,” said National Lawyers Guild President Marjorie Cohn. “The National Lawyers Guild called for its closure in 2005 and we are hopeful that President-elect Barack Obama will finally end this disgraceful chapter in U.S. history.”
