CRIMINAL JURISDICTION

Enemy Combatant Cases in Federal Courts Chart Uncertain Path

By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

On January 22, 2009, just days after assuming the presidency, Barak Obama announced that he would close the Guantanamo Bay, Cuba, detention facility where hundreds “suspected terrorists” have been held for years without trial under an official Bush-administration created designation “enemy combatant.” Civil libertarians and prominent constitutional scholars have long advocated the closure of the facility while political conservatives have fought hard in the trenches to keep the internationally-criticized torture facility open.

A liberal policy think tank called Center for American Progress, a staunch ally of the Obama administration, charged in a recently released report that the administration has made a series of blunders following the President’s January 22nd Gitmo closure announcement. The report, authored by Ken Gude, a scholar for the Center, says these blunders will delay Gitmo’s ultimate closure for months. The most significant blunders, the report charged, was the administration’s failure to have enough people in place to handle the difficult closure process and misleading Congress about its intentions.

The Obama administration assigned two task forces to deal with the Gitmo dilemma: one to examine the overall “detention policy” of suspected terrorists and the second to review the files of more than 200 detainees to determine whether they should be prosecuted in federal civilian courts or by military commissions. The most high-profile of these “enemy combatants” were Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks who has been in custody since March 2003, and four of his co-conspirators—all of whom will now be tried in the United States District Court in the Southern District of New York based on a recent decision by U.S. Attorney General Eric Holder.

Just last month President Obama signed the Military Commissions Act of 2009 (officially titled the 2010 National Defense Authorization Act) which changes—but some would argue does not actually improve—the rules governing the military commissions created in 2006 to hear terrorism cases. In 2006 then-Sen. Obama, and 33 other U.S. senators, voted against the “military commission’s law,” calling it a “flawed document” that ran counter to American values. (more…)