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Creating a Domestic Terror Court

17/06/2009 | by Guiora, Amos N. (Prof.)  

This article is part of the SSRN Legal Studies Research Paper Series and can be also viewed via the SSRN website.

President Barack Obama has stated that among his initial priorities as commander-in-chief is closing the United States detention facility in Guantanamo Bay. One of his first actions after taking office was to suspend all legal proceedings in Guantanamo so that the newly inaugurated president and his administration [can] review the military commission's process, generally, and the cases currently pending before military commissions, specifically. To that end, on January 22, 2009, President Obama signed an executive order requiring the closure of the Guantanamo Bay detention facility within one year. This Order raises numerous, highly problematic questions including: What do we do with the current detainees? Where will they go? How will they be tried? Will they be tried? What shall be done with future terrorism suspects?

Although President Obama has made his intentions clear, he has not, as of yet - according to media reports - determined what is the most effective manner to go forth with this enormously complex issue. Therefore, now is clearly the time to develop a working strategy to resolve the fundamental questions of where and how thousands of post-9/11 detainees are tried. For the reasons articulated below, I recommend establishing a domestic terror court (DTC) in the United States.

This article will detail the specific processes and procedures of such a court and seek to answer many of these difficult questions. In doing so, it is my hope that this article will act as a guide for policy makers in articulating, developing, and implementing a process from detention to trial of individuals suspected of involvement in terrorism. A lawful civilian process, subject to independent judicial review, is the constitutional, intellectual, and philosophical underpinning of this proposal. In detailing the nuts and bolts of the proposed DTC. Though I will briefly address why the DTC proposal should be adopted, the primary emphasis in this article is to fill in the blanks as to the workings of the court.

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