In January 2011, Congress enacted legislation prohibiting the use of federal funds to transfer to the United States any individuals currently detained at Guantánamo Bay, Cuba. Among the purposes of this provision, observers commented, was to prevent the prosecution of these detainees in federal court in the United States. President Obama signed the legislation into law as part of the Defense Authorization Act, but he also issued a statement strongly objecting to the provision and pledging to seek its repeal:
[This provision] represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantánamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must beamong the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation’s counterterrorism efforts and has the potential to harm our national security.
The congressional action and the President’s response are part of a broader public debate about the role of law enforcement as a counterterrorism tool. Some question the effectiveness of the U.S. criminal justice system and argue that it should never be used against terrorists, or at least some kinds of terrorists. In contrast, some others argue that law enforcement is the only legitimate way to detain terrorists, and that they should either be prosecuted in the civilian courts or released. This article argues that we should continue to use all of the military, law enforcement, intelligence, diplomatic, and economic tools at our disposal, selecting in each case the particular tool that is most effective under the circumstances, consistent with our laws and values. The discussion proceeds in five main parts.
David Kris is a founder of Culper Partners LLC. He previously served as assistant attorney general for national security, associate deputy attorney general, trial attorney at the Department of Justice, general counsel at Intellectual Ventures, and deputy general counsel and chief ethics and compliance officer at Time Warner. He is the author or co-author of several works on national security, including the treatise National Security Investigations and Prosecutions, and has taught at Georgetown University and the University of Washington.
Randomly, but increasingly, when he submits material for prepublication review by the government, Mr. Kris has been directed to add the following disclaimer or its equivalent, which should be understood to apply to all of his published work unless otherwise indicated: “All statements of fact, opinion, or analysis expressed are those of the author and do not reflect the official positions or views of the U.S. Government. Nothing in the contents should be construed as asserting or implying U.S. Government authentication of information or endorsement of the author’s views.”