There’s discussion the Department of Defense intends to move Guantanamo detainees out of Cuba and relocate them here in the United States.  Detainees at Guantanamo are those suspects arrested after the bombing of the USS Cole while at port in Yemen (where 19 of our sailors were murdered) and other suspected Al Qaeda captured in Iraq and Afghanistan.  These are terrorists awaiting trial before a military commission.

A site under consideration is Fort Leavenworth, Kansas.  Our entire Congressional delegation opposes the move as too threatening.

Fort Leavenworth is a long-term enduring Army installation, the headquarters of the Combined Arms Center and the United States Disciplinary Barracks; the military prison.  The Fort is a federal enclave within the boundaries of Leavenworth County, Kansas. Also, Leavenworth County is the home of the US Federal Penitentiary and the Kansas Lansing Correction Facility.  The business of the Leavenworth and Lansing communities is incarceration. Hundreds of experienced corrections professionals populate the area and actively search for this work.

The relocation of the Guantanamo detainees to Fort Leavenworth is an opportunity for Kansas to fill a vital national security mission. Kansans have never backed away from danger when asked to serve.  We have a history of doing our duty from the Civil War, through the two World Wars, Korea and Vietnam, and now prosecuting the current War on Terror.  The Army’s interrogation footprint could be further expanded to include combatants of future conflicts. Investments in new facilities and personnel will be required.

My support, however, is subject to a constitutional level caveat. Before bringing these detainees to US soil, I want the question answered whether they would acquire criminal defendant protections (sometimes called Article III rights) if moved to US soil.  As part of the confirmation process, this is one of the questions I would put to Supreme Court nominee Merrick Garland.  I won’t support a Leavenworth move if, when on US, Al Qaeda terrorists would be entitled to Article III rights such as Miranda warnings, hearsay exclusions, and a speedy trial.

Congress granted military commissions jurisdiction to try suspected terrorists of war crimes.  In order to avoid ex post facto challenges, Congress limited jurisdiction to acts that were recognized as international law of war violations at the time the detainees actually engaged in the prohibited conduct.  In the enabling legislation, Congress designated certain acts as offenses under the international law of war, including material support of terrorism and conspiracy.  Military commissions have found some Guantanamo prisons guilty of war crimes. Some were vacated on appeal.

Last year I attended a military continuing legal education seminar.  One of the panelists was the lead prosecutor on the case against the high-level Al Qaeda operative who masterminded the bombing of the USS Cole.  In the open forum discussion, this Assistant United States Attorney outlined his concern that, if these detainees were removed to a facility on US soil, a Federal District court could rule the defendants are within Article III jurisdiction, that these military commissions encroach upon their judicial powers, meaning detainee trials must be in front of federal judges.  This twist would produce motions to suppress evidence and dismissal of charges on allegations the government did not give defendants their Miranda rights, denied them a lawyer, blocked a speedy trial, acquired evidence without a search warrant, obtained statements by enhanced interrogation, and did not turnover exculpatory evidence.

This outcome could lead to the exclusion of evidence necessary to convict. The judge would then dismiss the charges for lack of evidence.  The terrorists would be released without a trial – a result neither I nor the public would ever approve of.  That is why I want the question, of whether detainees are entitled to Article III rights, answered before moving them from Guantanamo.