Eugene Sullivan and Louis Freeh propose creation of a Federal District Court for Guantanamo Bay in this WaPo op-ed. Sullivan is a former CJ of the Court of Appeals for the Armed Forces; Freeh is a former district judge and FBI Director. Their proposal would provide an Article III court and jury for trial of the terrorists without the security problems of the Administration's initial proposal of holding the trials in New York.
About that jury.... District courts generally draw their juries from adult citizens who are residents of the district. In the case of Guantanamo, that would be military personnel, civilian employees of the military, and their families. Given how small that population is, the chances of being tapped for jury duty would be far greater than anywhere else in the country. And, of course, you will probably get a jury that leans more to the prosecution viewpoint than in any other district.
The idea is not as loopy as it seemed at first blush. We should insist, though, that the legislation creating the district also plug the single-juror veto loophole that the Supreme Court read into the federal death penalty law in Jones v. United States, 527 U.S. 373, 380-381 (1999) and codify the interpretation that the Fifth Circuit gave in the same case, 132 F.3d 232, 242-243. No more terrorists should escape the death penalty the way Zacharias Moussaoui did, with the opinion of one juror overriding the opinions of the other eleven. (See posts here and here.) We would never allow a vote of 11-1 for conviction to be an acquittal. Why do Congress and some state legislatures allow the same thing at the penalty phase?
About that jury.... District courts generally draw their juries from adult citizens who are residents of the district. In the case of Guantanamo, that would be military personnel, civilian employees of the military, and their families. Given how small that population is, the chances of being tapped for jury duty would be far greater than anywhere else in the country. And, of course, you will probably get a jury that leans more to the prosecution viewpoint than in any other district.
The idea is not as loopy as it seemed at first blush. We should insist, though, that the legislation creating the district also plug the single-juror veto loophole that the Supreme Court read into the federal death penalty law in Jones v. United States, 527 U.S. 373, 380-381 (1999) and codify the interpretation that the Fifth Circuit gave in the same case, 132 F.3d 232, 242-243. No more terrorists should escape the death penalty the way Zacharias Moussaoui did, with the opinion of one juror overriding the opinions of the other eleven. (See posts here and here.) We would never allow a vote of 11-1 for conviction to be an acquittal. Why do Congress and some state legislatures allow the same thing at the penalty phase?
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