The version of the National Defense Authorization Act for FY 2014 (2014 NDAA) reported out by the Senate Armed Service Committee (SASC) would have eliminated the existing bar on bringing Guantanamo detainees to the United States.  The SASC version of the 2014 NDAA would have permitted transfers to the United States “for detention and trial” once specified conditions have been met.  The New York Times reports, however, that the transfer ban will remain in place, as part of the deal negotiated with the House.  While the compromise legislation will loosen current restrictions on transferring Guantanamo detainees to other countries, it will maintain the prohibition—in place since late 2010—on prosecuting detainees in Article III courts in the United States.

Meanwhile, the en banc D.C. Circuit is presently considering in United States v. Al Bahlul whether to uphold a D.C. Circuit panel’s prior determination (in Hamdan v. United States) that prosecutions of current Guantanamo detainees under the Military Commissions Act of 2006 (2006 MCA) must charge a violation of international law for conduct that predated that statute’s enactment.  The government, by contrast, contends that it may also prosecute Guantanamo detainees for violations of a domestic common law of war, which would allow more cases to go forward.  (Jen has an excellent primer on the appeal here).

If the full D.C. Circuit affirms—and the ruling is not disturbed by the Supreme Court—it would significantly reduce the potential number of detainees that could be prosecuted in military commissions by taking off the table charges such as material support for terrorism and conspiracy that are not violations of international law.   The commissions’ chief prosecutor, Brig. Gen. Mark Martins, has estimated that only 20 detainees could “realistically” be prosecuted in commissions if they are limited to international-law violations—an estimate that is likely overly optimistic given past predictions. (Recall that the Bush administration had originally assumed nearly all Guantanamo detainees would be prosecuted in military commissions).

Judicial narrowing of the commission’s subject matter jurisdiction will place renewed attention on federal prosecutions and, relatedly, on the legal issues surrounding the transfer of detainees from Guantanamo to Article III courts.   While existing caselaw affords the government considerable flexibility in this area, it also suggests the potential pitfalls of delay and the missed opportunity with the SASC version of the 2014 NDAA.

In United States v. Ghailani, the Second Circuit recently affirmed the conviction and life sentence of Ahmed Khalfan Ghailani, who was transferred from Guantanamo to the Southern District of New York in 2009, where he had previously been indicted for his role in the 1998 U.S. embassy bombings in East Africa.  To date, Ghailani remains the only Guantanamo detainee transferred for federal prosecution.  The Second Circuit’s ruling—controlling for any federal court in New York (a probable venue for at least some future prosecutions) and likely viewed as persuasive authority by other jurisdictions—rejected Ghailani’s argument that his prior five-year detention under the 2001 Authorization for Use of Military Force (AUMF) violated his Sixth Amendment right to a speedy trial.

At first blush, Ghailani portends a smooth transition from AUMF detention at Guantanamo to Article III prosecution for speedy trial purposes, even assuming the more rigorous Sixth Amendment Speedy Trial Clause, rather than the Fifth Amendment Due Process Clause, controls. (While the former unquestionably applies to detainees like Ghailani who had previously been indicted in federal court, it likely would apply to other detainees, who had not previously been charged, only if they established their prior military detention constituted an arrest).  It is, moreover, uncertain how many current detainees the government would attempt to prosecute in federal court if the transfer bar were lifted.

In Ghailani, the Second Circuit rejected Ghailani’s contention that the government had to choose between treating him either as a military detainee or a civilian criminal defendant.   As Steve properly notes, Ghailani thus validates the government’s position that it may freely move terrorism suspects between the alternate legal paradigms of AUMF military detention and Article III civilian prosecution, as long as the suspect is properly subject to each system.

But while Ghailani presents a significant obstacle to future speedy trial challenges by Guantanamo detainees, it does not foreclose them.

In rejecting Ghailani’s Sixth Amendment speedy trial challenge, the Second Circuit separated his five-year AUMF detention into two periods: Ghailani’s two-year national security detention at a CIA black site, whose primary purpose was intelligence-gathering; and his subsequent three-year detention at Guantanamo, which more closely resembled traditional pretrial detention (albeit pending prosecution in a military commission, rather than a civilian court).   While it found the former unproblematic, it expressed concerns about the subsequent Guantanamo detention.  Without attributing any bad-faith to the government, the Second Circuit acknowledged that the government bore the burden of the delay.  On balance, the appeals court found that the delay did not constitute a speedy trial violation in Ghailani’s case.  But it also emphasized that the government was operating under what it described as “a new, untested legal regime” (to wit, the military commission system).

Four years have passed since Ghailani was transferred to federal court, thus making other detainees’ pretrial military confinement significantly longer.  Further, the Second Circuit’s characterization of the commissions as “new” and “untested” is less persuasive now than when Ghailani was prosecuted.  The commissions’ shortcomings are on continual display in pending cases, including their lack of transparency, restrictions on the effective assistance of counsel, and jurisdictional infirmities.  At some point, a federal judge may find legal experimentation too thin an excuse, particularly where coupled with a credible showing that the defense has been prejudiced (a prospect that grows more likely with the passage of time as witnesses’ memories fade).

The Second Circuit found that on balance the delay in Ghailani’s case did not violate the speedy trial guarantee.  But another court might reach a different conclusion where a prosecution was brought years later.  At minimum, it will become increasingly difficult to reconcile such a delay with what the Second Circuit described as the speedy trial right’s purpose of protecting the “private and public interests in an efficient, fair, and effective justice system.”  So while Ghailani hardly signals urgency from a speedy trial perspective, it does suggest the value of eliminating the transfer ban sooner rather than later.