On July 28 Deborah Pearlstein, a Research Scholar at the Woodrow Wilson School’s program in Law and Public Affairs, testified before the U.S. Senate Committee of the Judiciary’s Subcommittee on Terrorism and Homeland Security on the topic, “Prosecuting Terrorists: Civilian and Military Trials for GTMO [Guantanamo Bay] and Beyond.”

Pearlstein’s testimony assessed the Obama administration’s Detention Policy Task Force’s preliminary report.  The report calls for revised military commission proceedings and processes to determine whether suspected terrorists being held at Guantanamo Bay should be tried in a federal or military court.

In her testimony Pearlstein underscored the importance of closing the detention facility but noted however, that “it must be recognized that the task of closing Guantanamo has been made significantly more difficult as a result of the past seven years of treatment of the detainees now held at Guantanamo Bay- treatment that was in many respects unlawful.”

To enable closure of “Gitmo,” she asserted, the White House and Congress need to determine “how best to resolve the cases of the Guantanamo detainees, whose options are uniquely limited by past mistakes.”  

Drawing on prior testimony she has delivered to Congress, Pearlstein “urged that Congress clarify that involuntary statements - whether obtained through torture, cruel treatment, or any other method - not be admissible in commission proceedings.”  New legislation, she added, “regarding military commissions must include a sunset provision or other structural mechanism to ensure that the commissions are strictly limited in purpose and duration.  Such structural limitations are essential not only to bolster the commissions’ already tarnished legitimacy, but also to ensure their constitutionality.” 

Pearlstein testified that in the case of military commission trials that “they may only be considered at all in those cases in which prosecutors have probable cause to believe that a specifically defined war crime has been committed, and that evidence admissible in the commission forum will likely suffice to sustain a conviction.”

Pearlstein stated “as the commissions proceed through the inevitable set of challenges they will face in the courts, the administration and Congress must recognize that whatever tactical gain may be achieved in trial-by-commission in the first instance will bring with it a strategic cost of conducting trials under a system many will likely continue to see as lacking in legitimacy. As the president himself appears to believe, the United States has already suffered significant strategic losses in the global struggle against terrorism. It is in the security interest of the United States to minimize those losses going forward.”

In concluding her delivered remarks, Pearlstein asserted, “It is still possible to create a lawful set of rules for the opportunity of military commission trials.  But it remains a significant challenge for all three branches to see it done.”