WASHINGTON – The debate on how to detain terror suspects continues to be so complicated nearly 10 years after the attacks on 9/11 that even Bush administration Attorney General Michael Mukasey said there is no coherent policy for dealing with detainees and interpreting the Congressional Authorization for Use of Military Force that governs them.
The House Armed Services Committee held a hearing last week to consider whether there is a need to rewrite the original authorization of force, which doesn’t even mention the word detainee. The hearing included testimony from legal experts who said there is a need to make detainee policies clear for the military because troops are normally is the first to come into contact with terror suspects.
Rep. Roscoe Bartlett, R-Md., a member of the committee, said it’s time to reaffirm Congress’s role in identifying the scope of the current conflict. The complications surrounding a war against what Mukasey called “shadowy adversaries who do not follow the rule of law” have become more complex as the enemy has split and transformed.
Mukasey, a former federal judge, said U.S. troops need clear authority to capture and hold dangerous people in order to gain valuable intelligence, but that they often don’t know what to do.
“We are faced with the choice of killing them, holding them onboard ships for a limited time to obtain intelligence if possible, then either sending them to another country that will take them, bringing them to the U.S. for trial in a civilian court or freeing them,” Mukasey said.
But some Constitutional experts don’t think Congressional action is needed to deal with the issue of detainees.
Retired Air Force Col. Morris Davis, former chief prosecutor of the military commissions at Guantanamo Bay, said this issue has already been addressed.
“Detainees are generally considered to be dealt with in the Geneva conventions,” Davis said. “The Army has a detailed field manual on dealing with this.”
Laura Pitter, counterterrorism advisor with Human Rights Watch, said Congress is interfering unnecessarily and irresponsibly in counterterrorism policy by considering new legislation to deal with detainees.
“The Obama administration has clear policies on detainees,” Pitter said. “They [Congress] are attempting to strip the Justice Department of the role that they’ve been playing in counterterrorism and trying to force the use of Guantanamo Bay instead.”
Tom Parker, policy director of terrorism, counterterrorism and human rights with Amnesty International, said there’s already a good system in place – the criminal justice system. The idea proposed by those in Congress to continue the use of Guantanamo Bay as it was used under the Bush administration is troubling, he said.
“Civil courts have high conviction rates and have had no difficulties dealing with defense information,” he said. “It’s a very, very good system. There is also a very bad system, and that is Guantanamo Bay.”
Guantanamo Bay does not produce many convictions for the amount of money spent there he said.
“If you want a good place to start cutting debt, look there,” Parker said. “We’ve spent a ton of money and have prosecuted few people. It’s a cracked and failed system and it’s been a failure in bringing people to trial. Hearing Congress talk about this is like hearing kindergarteners talk about it.”
Davis and Parker both cite the language of ‘unlawful combatant’ used by the Bush administration as a point that complicated dealing with terror detainees.
“The Bush administration created such a complicated situation that no one really understands,” Parker said. “’Unlawful combatants’ didn’t exist before, so it’s very difficult to untangle all of this.”
Robert Chesney, Charles I. Francis professor in law at the University of Texas School of Law, testified during the hearing that civilian criminal prosecution is best for long-term.
“But that doesn’t mean that you treat a terror suspect like a civilian suspect,” Chesney said. “You should get intelligence on the front-end, but that doesn’t mean that you shouldn’t prosecute on the back end.”
A policy combining the military, intelligence community and the Justice Department would be most effective, he said.
Rep. Adam Smith, D-Wash., the ranking member of the committee, said at the hearing that keeping all options for detainment – including indefinite detention, military commissions and federal courts – will help the administration prosecute detainees.
Davis agrees.
“We’ve prosecuted six people in 10 years at Gitmo and 300 to 400 in civilian courts,” he said. “Khalid Sheikh Mohammed is still sitting in Gitmo, but his nephew, who we tried in a New York [federal district] court was sentenced to life in prison and is serving it in solitary confinement in Florence, Colo.”
The military doesn’t have a history of dealing with these types of issues, which may have posed some challenges for them, Pitter said, since interrogation and intelligence gathering is normally handled by the FBI, the intelligence community and by domestic law enforcement.
And the fact that this debate continues 10 years after 9/11 is a sad commentary on our political climate, Davis said.
So it ends up as the Obama compromise, Parker said, of combining interrogation with civil courts.
“He gets to have his cake and eat it too,” Parker said. “A little roughing up, some intimidation techniques – then the old-fashioned policing. The right gets to see someone flex his muscles and the left gets to see someone in a police uniform.”
But you can’t be a little bit of a human rights abuser – you either abuse them or you don’t, he said.
