Legal Affairs May 2007

Terrorism Suspects and the Law

No satisfactory resolution of the debate over the treatment of suspected terrorists is likely until at least 2009.

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.

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."

    Presented by

    Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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