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ABA Endorses Detainee Rights

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The ABA’s policymaking house of Delegates voted overwhelmingly at the midyear meeting to endorse rights of due process for detainees held at Guantanamo Bay, Cuba.

Rejecting motions for delay, the House called for the government to ensure that:

• Individuals charged with vio­lations of criminal law should be prosecuted in Article III federal courts unless the attorney general certifies that they must be tried in other kinds of federal tribunals, such as courts-martial or a yet-to-be-created national security tribunal.

• Guantanamo detainees who are determined to not qualify as enemy combatants “should be promptly released or resettled.”

• Others held at Guantanamo should be granted a prompt habeas corpus hearing with full due process rights and access to counsel.

• No one should be detained as an enemy combatant except under an act of Congress defining the term.

Fernando A. Bohorquez Jr., a partner with New York City’s Baker & Hostetler, characterized the measure as “a timely, basic reaffirmation of the rule of law as it applies to Guantanamo.”


“Not only is recommendation 10A the right thing to do, but now is the time to do it. We should be engaged in the dialogue from the beginning. We would be remiss not to capitalize on this opportunity. The president—a lawyer and a constitutional law professor, no less—will want to know what the ABA has to say” about how to deal with enemy combatants, Bohorquez said.

Several speakers called for a delay in ABA action because the Obama administration had not yet formulated a policy of its own.

Stephen A. Saltzburg of Washing­ton, D.C., a delegate representing the Criminal Justice Section, said the new policy proposal is consistent with positions the ABA has taken ever since the Guantanamo detention facility was opened after the terrorist attacks on Sept. 11, 2001. And, he said, the ABA should express those views in an independent fashion, as it has been doing the past eight years.

“We don’t need an administration to tell us what it will do for us to say what’s right,” said Saltzburg. “We don’t care what the administration thinks. Our job is to say what we believe.”

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