« Previous Post | Next Post »

After Guantanamo

For Real Change, Overhaul U.S. Detention Policy

It's true that we cannot kill or capture our way to victory. Yet military detention, carefully calibrated to complement broader national security and counterterrorism policies, is necessary.

By Charles Stimson

Closing Guantanamo or merely moving its detainees to the United States, without addressing the underlying questions regarding U.S. detention policy, is just changing the zip code without confronting the broader challenges of the terrorist threat.

The Obama administration has an opportunity to build on the legal and policy underpinnings already laid down on how to incapacitate terrorists and hold them accountable. Besides closing Guantanamo responsibly, determining which detainees can be safely transferred, and deciding how to prosecute key terrorists without giving away national security secrets, the administration must figure out how to deal with future captures. That means they must develop a comprehensive detainment policy.

Military detention of some future captures, which is consistent with long historical practice, is a necessary and lawful tool. It's true that we cannot kill or capture our way to victory, as Gen. David Petraeus and Defense Secretary Robert Gates have said. Yet military detention, carefully calibrated to complement broader national security and counterterrorism policies, is necessary.

This view is broadly shared. The 9/11 Commission urged the United States to engage its allies and develop a common approach to the detention and humane treatment of captured terrorists, drawing from Common Article 3 of the Geneva Conventions. The International Committee of the Red Cross acknowledges that such detention is legal and an "exceptional measure of control that may be ordered for security reasons in armed conflict or for the purpose of protecting State security or public order in non-conflict situations." According to the International Committee of the Red Cross, detention makes sense because "it allows the detaining authority to deprive liberty of persons who are not subject to criminal processes but nevertheless represent a real threat to security in the present or in the future."

So despite what some have argued, the United States is not required, by international obligations or otherwise, to "try them or set them free." That false choice is dangerous.

Indeed, members of both political parties recognize the value of military detention. Sens. Diane Feinstein, John Rockefeller, Ron Wyden and Sheldon Whitehouse--all Democrats--introduced a bill, the "Lawful Interrogation and Detention Act," that, among other things, specifically authorizes military detention for some detainees who cannot be prosecuted.

The Obama administration appears receptive to the idea of crafting a comprehensive detention policy. Recall that, as a candidate, Barack Obama pledged to "build U.S. capacity and international partnerships to track down, capture or kill terrorists around the world." And President Obama acknowledged in his inaugural address that we are indeed at war. His top lawyers, Attorney General Eric Holder and Solicitor General Elena Kagan, testified during their confirmation hearings on the importance of terrorist detention and the legality, as well as practical necessity, of detaining some terrorists indefinitely.

Certainly, the new administration should try some future captures in federal court--an option that the Bush administration should have used more often. But trials shouldn't be the exclusive weapon in our arsenal for combating al Qaeda and similar groups.

We need a military detention framework for future captures that is lawful, durable and internationally acceptable. It must uphold the rule of law, protect human rights, and adhere to applicable provisions and the underlying principles of the Geneva Conventions.

Much thought needs to be given to who can be detained. First of all, military detention should be used only for those detainees who cannot be safely prosecuted, and it shouldn't apply to anyone captured in the United States. Beyond that restriction, conceptual criteria such as dangerousness, active or direct participation, membership in or support for an organization such as al Qaeda, past acts, and future intentions must all be weighed before drafting an appropriate definition of who may be detained.

We need robust procedural protections for future captures--what I call "Geneva-plus." Each future capture should be given a hearing, similar to an "Article 5" hearing under the Geneva Conventions, at or near the time of capture. If the hearing officer finds the terrorist detainable, then he may be detained. If not, the hearing officer may order him released after the hearing.

After a relatively short, defined period of lawful interrogation, the detainee should receive an Article 5-style "competent tribunal" hearing before a military judge with the assistance of military counsel. After a full and fair hearing, the judge decides whether the detainee qualifies for further detention, subject to periodic review.

The detainee should be able to appeal that decision and should have qualified, free legal representation to do so.

The basis for his detention should be reviewed periodically. This could be done annually by a federal district court judge or perhaps by the existing foreign-intelligence court or by a newly created national security court.

We shouldn't allow the present 180-day "strategic pause" to go to waste. The Obama administration should use it to begin crafting a durable, internationally acceptable military detention framework for incapacitating and holding accountable future captures who seek to harm us.

Charles Stimson is a Senior Legal Fellow at the Heritage Foundation and former Deputy Assistant Secretary of Defense for Detainee Affairs (2006-2007).

Email This Post | Del.icio.us | Digg | Facebook

Please e-mail PostGlobal if you'd like to receive an email notification when PostGlobal sends out a new question.

PostGlobal is an interactive conversation on global issues moderated by Newsweek International Editor Fareed Zakaria and David Ignatius of The Washington Post. It is produced jointly by Newsweek and washingtonpost.com, as is On Faith, a conversation on religion. Please send us your comments, questions and suggestions.