This week, hearings began on House and Senate legislation designed to create a comprehensive framework for the detention of individuals captured in the course of U.S. counterterrorism operations against al-Qaida and other terrorist groups. Those who decried the lack of a statutory framework for what appears to be the inevitable long-term detention of suspected terrorists likely will welcome the proposed legislation as the long-awaited antidote to the ad hoc process that has developed over the past 9 1/2 years.
Mere legislation itself, though, is not the answer. Legislation based on the fundamental moral and legal principles that guide our country would be a giant step forward — for fair and effective counterterrorism that balances national security and individual rights. But neither the Detainee Security Act (House) nor the Military Detainee Procedures Improvement Act (Senate) fits the bill.
These proposed bills are based primarily on fear — on the fear that civilian courts cannot handle terrorism cases and on the fear that courts will not defer completely to the executive’s claims of national security when faced with grave violations of individual rights.
The first fear is unfounded. Since Sept. 11, more than 200 suspected terrorists have been prosecuted in federal courts with a conviction rate of more than 91 percent. Fewer than five have been tried before the military commissions.
These numbers demonstrate that completely foreclosing all trials in civilian courts and all transfers of detainees to the United States is not grounded in careful policy analysis.
Instead, it seems to be based on the fear of those who are suspected — not proven — of trying to kill Americans, and a reactive desire therefore to deny them rights. The worst serial murders in U.S. history got full and fair trials. What is it about the word “terrorist” that makes us forget where we come from?
But it is the second fear that should catch the breath of every American. The proposed bills simply legislate the courts out of the picture altogether. The annual periodic review process created to assess the continued detainability of detainees at Guantanamo (or future detainees) has no appeal process.
This is important enough to repeat — no appeal process.
There is no doubt that an annual review is better than long-term detention with no review process at all. This incremental improvement is insignificant, however, when the review board is not accountable in any way to a court or any other method of independent judicial review.
The Senate bill actually goes one step further still. In a total bow to executive authority, the legislation states that the review panel’s finding regarding a detainee’s continued detention is simply a recommendation and does not bind the president. This is the ultimate dagger in the heart of separation of powers and checks and balances — a Congressional license of complete executive authority and no courts to say otherwise.
The only reason to keep the courts out is the fear that the courts will not approve of the process, either in individual cases or overall. The fear that courts might actually inject individual rights into the equation, upsetting the current complete dominance of national security interests over any other interest, no matter how fundamental.
We have learned the lesson of an unchecked executive before — with the suspension of habeas corpus during the Civil War and the internment of Japanese-Americans during World War II — and in both cases it was the courts that set us back on course and restored the balance between national security and individual rights. When Guantanamo threatened to become truly a legal black hole in the first years after Sept. 11, the Supreme Court repeatedly held that detainees at Guantanamo have a right to legal representation and to habeas corpus — in essence, a right to exist in a legal framework.
Supporters of indefinite detention — and likely of the proposed bills in the House and Senate — defend it as “detention under the laws of war.” If the detention is founded on fundamental legal principles signed and ratified by every nation worldwide, then why keep the courts out of the business of reviewing and assessing the lawfulness of such detention?
Legislating based on panic is neither moral nor effective. America needs a counterterrorism strategy — including detention of suspected terrorists where appropriate — that is based on sound legal principles and paradigms, not just on the fear of a future attack.
Laurie R. Blank is director of the International Humanitarian Law Clinic at Emory University School of Law.
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