nationalsecuritylaw AG Letter to Congress Opposing GTMO-Transfer Legislation

* Letter from Attorney General Holder to Senators Reid and McConnell regarding GTMO-transfer language in the Continuing Resolution

The letter is attached, and full text appears below

December 9, 2010

The Honorable Harry Reid

Majority Leader

United States Senate

Washington, DC 20510

The Honorable Mitch McConnell

Minority Leader

United States Senate

Washington, DC 20510

Dear Senators Reid and McConnell:

I write in opposition to Section 1116 of the proposed 2011 Full-Year Continuing Appropriations Act, which would prohibit the use of any funds to transfer detainees from the detention facility in Guantanamo Bay, Cuba, to the United States for any purpose. This provision goes well beyond existing law and would unwisely restrict the ability of the Executive branch to prosecute alleged terrorists in Federal courts or military commissions in the United States as well as its ability to incarcerate those convicted in such tribunals.

In order to protect the American people as effectively as possible, we must be in a position to use every lawful instrument of national power to ensure that terrorists are brought to justice and can no longer threaten American lives. As reflected in the President’s National Archives speech in May 2009, he, as Commander-in-Chief, has determined that prosecutions of alleged terrorists in Article III courts for the criminal terrorism offenses Congress has enacted—a powerful and well-established tool that has been used successfully in hundreds of cases—should be available in this effort to protect the nation.

Section 1116 is an extreme and risky encroachment on the authority of the Executive branch to determine when and where to prosecute terrorist suspects. Such decisions should be based on the facts and circumstances of each case and the overall national security interests of the United States. Section 1116 would undermine my ability as Attorney General to prosecute cases in Article III courts, thereby taking away one of our most potent weapons in the fight against terrorism.

It would therefore be unwise, and would set a dangerous precedent with serious implications for the impartial administration of justice, for Congress to restrict the discretion of the Executive branch to prosecute terrorists in these venues. The exercise of prosecutorial discretion has always been and must remain an Executive branch function.

We have been unable to identify any parallel to Section 1116 in the history of our nation in which Congress has intervened to prohibit the prosecution of particular persons or crimes. It would be a mistake to tie the hands of the President and his national security advisers now.

For these reasons, I urge you to remove Section 1116 from the bill or from any other appropriations bill that the Senate may consider.

Sincerely,

Eric H. Holder, Jr.

Attorney General

AG CR Letter 12-9-10.pdf

By Robert M. Chesney

Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.

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