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Federal Prosecution is a Viable Option for Enemy Combatants

Mary B. McCord
Monday, July 24, 2017, 2:19 PM

Last Thursday at the Aspen Security Forum—an annual gathering of current and former government policymakers, foreign officials, foreign policy experts, and journalists hosted by the Aspen Institute—Assistant to the President for Homeland Security and Counterterrorism Thomas Bossert told the audience that there are three viable options for taking an enemy combatant off the battlefield: “we can kill him, we can catch him and release him after a few weeks, maximum, or we can outsource our responsibility and send him to a third party.”

The Thurgood Marshall U.S. Courthouse, which houses the United States Court of Appeals for the Second Circuit and the United States District Court for the Southern District of New York (Ken Lund)

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Last Thursday at the Aspen Security Forum—an annual gathering of current and former government policymakers, foreign officials, foreign policy experts, and journalists hosted by the Aspen Institute—Assistant to the President for Homeland Security and Counterterrorism Thomas Bossert told the audience that there are three viable options for taking an enemy combatant off the battlefield: “we can kill him, we can catch him and release him after a few weeks, maximum, or we can outsource our responsibility and send him to a third party.” Bossert noted that he would like to see military commissions work, lamenting appropriately that Khalid Sheikh Mohammed has been pending military commission trial for his role in the 9/11 planning for years, with no trial date yet in sight. And he deplored as “wrong-headed” the Supreme Court’s decision in Boumediene v. Bush, which extended habeas corpus rights to law-of-war detainees at Guantanamo Bay. Bossert concluded that unless we can “come up with an Article III approach that works, or a military commission process that works more quickly and fairly,” we are “stuck with” outsourcing the ultimate disposition of newly captured enemy combatants to third parties.



Mary B. McCord is currently Legal Director and Visiting Professor of Law at the Institute for Constitutional Advocacy and Protection at Georgetown University Law School. She is the former Acting Assistant Attorney General and Principal Deputy Assistant Attorney General for National Security at the U.S. Department of Justice and was a long-time federal prosecutor in the U.S. Attorney’s Office for the District of Columbia.

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