What should our government do when it captures a noncitizen suspected of being an Islamist terrorist?
Under the Bush administration's approach, partly ratified by Congress, such people can be imprisoned indefinitely, perhaps for life, without ever seeing a judge or jury, based on slapdash military hearings with no defense lawyers, no real opportunity to confront the evidence against them—which can be obtained through coercive interrogation—and all-too-cursory judicial review. Some detainees have also been subjected to years of interrogation, including techniques so brutal as to meet many definitions of torture—and, in a few cases, to cause death.
By contrast, under the approach demanded by some human-rights groups, even a captive who is undoubtedly a mass-murdering terrorist must be freed unless the government can prove his guilt beyond a reasonable doubt in an ordinary criminal trial. If the proof would publicly expose secrets so sensitive as to endanger the lives of intelligence sources, that would be the government's problem. Nor could terrorist masterminds be subjected to even mild discomfort by interrogators seeking to extract life-saving information.
The gulf between these two approaches illustrates the polarization of our political and legal debate on the handling of terrorism suspects. No satisfactory resolution seems likely until at least 2009. Then, perhaps, we may have a new president willing to heed the advice of the more moderate-spirited experts (some named below) who have been thinking through the challenges posed by the hundreds of suspects now held by the military and others who may be captured in the future.
The most important challenge will be to devise a fairer process for deciding whether to subject suspects who may or may not be terrorists to long-term detention—an issue of much greater importance than the more publicized Bush plan for criminal trials of a few detainees before military commissions.
Meanwhile, with the administration's far-too-error-prone approach in place and its loudest critics offering no politically acceptable alternative, America's once-proud image suffers—more than it should, probably—and the terrorists win recruits and sympathizers around the world.
To make things worse, the administration is trying to leverage the denial of serious judicial review to Guantanamo Bay detainees—approved by Congress in October's Military Commissions Act—into a denial of serious legal representation as well. The Justice Department has urged the U.S. Court of Appeals for the District of Columbia Circuit to limit lawyers handling appeals from military decisions classifying detainees as enemy combatants to three visits per client; to let the government read lawyer-client letters; and to let it deny the lawyers access to secret evidence.
At the other extreme, some human-rights advocates seem so deep in denial about the magnitude of the terrorist threat, as well as about the differences between their own views and those of the vast majority of voters and politicians, that their protests fall mostly on deaf ears. Such groups have little prospect of influencing American policy even if Democrats take the presidency and hold Congress in 2008.
After all, when the Supreme Court rebuffed Bush in 2004 and again last year for breaking the law in his handling of detainees, Congress promptly changed the law after each decision to overrule the justices and give Bush most of what he wanted. And while human-rights groups would completely ban even mildly coercive interrogation, some Democrats, including Sens. Hillary Rodham Clinton and Charles Schumer of New York, have said that they might support full-fledged torture in a "ticking-bomb" scenario. Such comments, plus the unwillingness of most Democrats to push for reforms in the treatment of detainees, reflect the reality that public opinion is far closer to Bush's guilt-presuming approach than to the unrealistic prescriptions of, say, Amnesty International.
And on the merits, the military's highly inadequate Combatant Status Review Tribunals, which decide what suspects to incarcerate as "enemy combatants," do provide protections consistent with the Geneva Conventions and the Supreme Court's 2004 Hamdi v. Rumsfeld decision.
It must also be admitted, in my view, that although "meaningful, probing judicial review has a more substantial place in this war than the administration allows, it has a far-more-limited one than many civil libertarians and human-rights advocates imagine," as Brookings Institution guest scholar Benjamin Wittes writes in a forthcoming June/July Policy Review article.