Terrorism Suspects and the Law

Wittes and other moderate-minded experts of diverse political views appear to agree on the need for policy makers to find a middle course between the Bush and Amnesty International extremes. The best hope for moving toward a decent detainee policy is for the winner of the 2008 presidential election, and the 111th Congress, to look to such experts for guidance.

These experts include (among others) Jack Goldsmith of Harvard Law School, one of the few high-level Bush Justice Department officials handling terrorism issues to leave with his reputation intact; former Clinton Justice Department officials including Walter Dellinger of Duke Law School and Neal Katyal of Georgetown Law School; Elisa Massimino, Washington director of Human Rights First; Kenneth Anderson of American University Washington College of Law; and Curtis Bradley of Duke Law School, who served in the Bush State Department.

Then there is Bill Clinton, who would make a perfect chairman for a national commission on detainee treatment. In a little-noticed National Public Radio interview last fall, the former president outlined a sensible approach to the hypothetical interrogation of a captured terrorist mastermind who is thought to know the plans for an imminent attack:

"You don't need blanket advance approval for blanket torture. They can draw a statute much more narrowly, which would permit the president to make a finding ... if they really believe ... the only way they can get a reliable piece of information is to beat it out of someone or put a drug in their body to talk it out of him, then they can present it to the Foreign Intelligence [Surveillance] Court, or some other court, just under the same circumstances we do with wiretaps. Post facto.... But I think if you go around passing laws that legitimize a violation of the Geneva Convention and institutionalize what happened at Abu Ghraib or Guantanamo, we're going to be in real trouble."

Even the wisest experts on these issues disagree about many things—most of all, perhaps, about whether federal courts should have the power (denied by the Military Commissions Act) to hear full-fledged habeas corpus challenges to the military's detention or treatment of non-Americans captured overseas. But many of them appear to agree about some big things:

The demands by many human-rights advocates that all terrorism suspects be released unless proven guilty of crimes should be (or, at least, inevitably will be) rejected by the president, Congress, and the courts. Some form of administrative detention—not to punish but to incapacitate terrorism suspects for whom criminal prosecution is not feasible—will be with us for the foreseeable future.

The detention hearings implicitly approved by Congress last October are unnecessarily error-prone. Terrorism suspects should have the assistance of counsel in these detention hearings; the lawyers should (if they qualify for security clearances) have access to all of the government's evidence and should be able to seek evidence and testimony from abroad, insofar as practicable.

Congress should revisit and reject the Bush position that the government can grab any foreigner in this country and lock him up indefinitely as an enemy combatant, with no trial and no more protection against erroneous detention than is given to those captured in Afghanistan.

The definition of "unlawful enemy combatant" in the Military Commissions Act is too broad. It includes not only active participants in hostilities but also anyone who "purposefully and materially" supported attacks on the United States or its allies—language that arguably encompasses anyone who sent money to a banned group or food to a combatant son.

The act's vague, confusing rules on interrogation tactics leave too much room for executive branch manipulation while also leaving interrogators too exposed to second-guessing.

More-rigorous federal judicial review is needed over the integrity of the military's fact-finding process than the Military Commissions Act provides, both in the initial decision to detain a suspect and in subsequent parole-type hearings to determine whether he still poses a threat.

"Deferential [judicial] review of anemic procedures yielding decisions with enormous consequences for the liberty of individuals captured under murky circumstances," as the forthcoming Wittes article asserts, "is not a recipe either for justice or for public confidence in American prosecution of the war on terror in the long run."

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