Over the past two years the US Congress has enacted legislation blocking the transfer of detainees at Guantanamo to the United States for trial. One aim of the legislation is to compel the government to try terrorism suspects before military commissions at Guantanamo rather than in federal courts. While the rules governing military commissions have improved since Barack Obama became president, the system at Guantanamo remains deeply flawed, preventing fair trials. Meanwhile, federal courts have been far more effective at prosecuting terrorism cases.

PODCAST: Find out why Guantanamo remains open and how US counter-terrorism policy is threatening rights at home and abroad. With HRW's Andrea Prasow and Baher Azmy of the Center for Constitutional Rights.

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PROSECUTION

Since the September 11, 2001 attacks, New York University's Center on Law and Security reports that 578 terrorism-related cases, "inspired by jihadist ideas," have been prosecuted in US federal courts.[2] During that same period the military commissions in Guantanamo have completed only seven cases.

EFFICIENCY

Not only have federal courts prosecuted a far greater number of terrorism cases than military commissions, they have also prosecuted them much more quickly. Taking a sample of the main defendants convicted in the top 50 terrorism plots[3] in federal court, and comparing them to the total of seven defendants convicted in military commissions, the time between arrest[4] or capture and conviction[5] was significantly shorter in federal court. In federal court the time between arrest and conviction was roughly less than a year in the majority of cases. Of these, 12 cases were resolved in about three months and 11 were handled in about six. Roughly twenty-one cases were handled between one and two years, 16 between two and three and only nine took more than three years from arrest to conviction. Meanwhile in the military commissions the shortest time between initial capture and conviction was five years, three months and the longest time nine years, seven months.

 

The average time between arrest and conviction in federal court for the main defendants in the top 50 terrorism plots was 1.4 years. The average time in the military commissions between initial capture and conviction for all seven detainees prosecuted was 7.9 years. [6]

[1] Center for the Study of Human Rights in the Americas, University of California at Davis, "Guantanamo's Children: The Wikileaked Testimonies," (undated) http://humanrights.ucdavis.edu/reports/guantanamos-children-the-wikileaked-testimonies/guantanamos-children-the-wikileaked-testimonies (accessed December 29, 2011).

[2] New York University School of Law, Center on Law and Security, "Terrorist Trial Report Card: September 11, 2001 - September 11, 2011," (undated), http://www.lawandsecurity.org/Portals/0/Documents/TTRC%20Ten%20Year%20Issue.pdf (accessed December 27, 2011) p. 7.

[3] The top 50 plots were identified by NYU's Center for Law and Security based on, in sum, a number of factors including the seriousness of the crime, the importance of legal issues involved, and the amount of media attention received. See New York University School of Law, Center on Law and Security, "Terrorist Trial Report Card: September 11, 2001 - September 11, 2010," (undated) http://www.lawandsecurity.org/Portals/0/documents/01_TTRC2010Final1.pdf (accessed December 27, 2011). The 50 terrorism plots often included more than one defendant but the data used here was obtained by extracting, from the raw data of the cases comprising the top 50 plots supplied by New York University School of Law, Center on Law and Security, information on the main defendants in each plot.

[4] For the four detainees transferred from initial military detention into the federal system, the date of transfer was used as the date of arrest.

[5] The analysis presented here takes the raw data for the top 50 plots supplied by New York University School of Law, Center on Law and Security, extracts information from the cases of the main defendants in each plot, and combines that with information obtained from the Department of Justice and independent research on arrest and conviction dates conducted for Human Rights Watch with the special assistance of Trent Buatte and Abigail Gellman. It includes data from the cases of 91 different defendants.

[6] The figures for federal court were last updated on December 23, 2011. The figures for the military commissions were last updated on June 12, 2014.