Law Enforcement as a Counterterrorism Tool
![handle is hein.journals/jnatselp5 and id is 3 raw text is: Law Enforcement as a Counterterrorism Tool
David S. Kris*
In January 2011, Congress enacted legislation prohibiting the use of
federal funds to transfer to the United States any individuals currently
detained at Guantdnamo 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.2 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 Guantinamo 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 be
among the options available to us. Any attempt to deprive the
executive branch of that tool undermines our Nation's
* Assistant Attorney General for National Security at the U.S. Department of Justice
from March 2009 to March 2011. This article was written and submitted for publication
when Mr. Kris was Assistant Attorney General. The views expressed herein do not
necessarily reflect the views of the U.S. Government. Brad Wiegmann and Rosemary
Nidiry provided superb assistance on this project. Some of the points made in this article
expand on remarks made by Mr. Kris in a speech at the Brookings Institution in June 2010.
The prepared remarks are available on both the Department of Justice's website, http://www.
justice.gov/nsd/opalpr/speeches/2010/nsd-speech-100611.html, and on Brookings' website,
http://www.brookings.edu/events/ 2010/0611 lawenforcement.aspx. Video of the speech
is available on C-SPAN's website, http://www.c-spanvideo.org/ program/294017-1.
1. See The Ike Skelton National Defense Authorization Act for Fiscal Year 2011,
H.R. 6523, 111th Cong. §1032, enacted as Pub. L. No. 111-383 (Jan. 7, 2011). During the
spring of 2011, other bills with similar provisions were pending in Congress. For example,
Sections 1039 and 1046 of H.R. 1540, the National Defense Authorization Act for Fiscal
Year 2012, which was passed by the House of Representatives on May 26, 2011, would
prohibit Defense Department appropriated funds for 2012 from being used to transfer or
release an individual detained at Guantanamo . .. to or within the United States, and require
trial by military commission for certain terrorists if they are subject to trial . .. by a military
commission.
2. See, e.g., David B. Rivkin, Jr., & Lee A. Casey, Editorial, The Wrong Way To Stop
Civilian Terror Trials, WALL ST. J., Dec. 21, 2010, at A17 (noting that the apparent purpose
of the defense authorization provision is to prevent the prosecution of Guantinamo Bay
detainees in federal court).
3. Statement by the President on H.R. 6523, 111th Cong. (Jan. 7, 2011).
1](ViewImageLocal?handle=hein.journals/jnatselp5&div=4&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Law Enforcement as a Counterterrorism Tool
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most