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1 Determination of Guantanamo Cases Referred for Prosecution 1 (2009)

handle is hein.prescomm/dtguancp0001 and id is 1 raw text is: Determination of Guantanamo Cases Referred for Prosecution This protocol govems disposition of cases referred for possible prosecution pursuant to Section 4(c)(3 )of Executive Order 13492, which applies to detainees held at Guantananio Bay, Cuba. 1 Process forDetermination of Prosecution. When a case is referred, it Will be.assigned to a team composed of Assistant Linited States Attorneys. attorneys from the National Security Division (NSD) of the'Department of Jus ice (DOJ), and personmel from the Department of Defense (DOD), including prosecutors from the Office of Military Commissions, which will furthet investigate and develop the case for prosecution. Thereafter, the prosecution team will recommend, based on the-factors set forth below, whether the case should be prosecuted.in an Article III cowl (including venue) or a reformed military commission. If the prosecution team concludes that prosecution, is not feasible in any forur it may recommend that the case be returned'to the Executive Order 13492 Review for other appropriate disposition. NSD and the participating DOD entities will then jointly determine Whether the case is feasible for prosecution, and the appropriate forum (and, if necessary, vnue) for that prosecution They will transmit that deterrnination to the Attorney General through the Deputy Attorney General, along with materials from any DOJ or DOD entity that disagrees with the determination. The Attorney General, in consultation with the Secretary of Defense, will make the final decision as to the appropriate forum and (if necessary) venue for any prosecution. Where a case is to be prosecuted. both DOJ and DOD willbe expected to support 11e prosecution regardless: of forum and venue. 2. Factors for Determination of Prosecution. There is a presumption that. where feasible, referred cases will be prosecuted in an Article Ill court, in keeping with traditional principles of federal prosecution. Nonetheless, where other compelling factors make it more appropriate to prosecute a case in a reformed military commission, it may be prosecuted there. That inquiry turns on the following three broad sets of factors, which are based on forum-selection factors traditionally used by federal prosecutors: A. Strenth of Interest, The factors to be considered here arc the nature of the offenses to be charged or any pending charges; the nature and gravity of the conduct underlying the offenses; the identity of victims of the oftbnse; the location in which thie offenses occurred; the location and context in which the individual was apprehended; and the mnner in which the case was investigated and evidence gathered, including the investigating entities.

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