(Delighted to welcome back alumna Laurie Blank, who contributes this guest post)Hearings have begun on proposed House and Senate legislation designed to create a comprehensive framework for the detention of individuals captured in the course of U.S. counterterrorism operations against al Qaeda and other terrorist groups. Those who have decried the lack of a statutory framework for what appears to be the inevitable long-term detention of suspected terrorists will likely welcome the proposed legislation as the long-awaited antidote to the ad hoc process that has developed over the past nine-and-a-half years.
As I argue in a recent op-ed in the Atlanta Journal Constitution, entitled "Build Detainee Policy on Sound Law," however, mere legislation itself is not the answer.
Legislation based on the fundamental moral and legal principles that guide our country would be a giant step forward – for fair and effective counterterrorism that balances national security and individual rights. But neither the Detainee Security Act (House, proposed by Representative McKeon) nor the Military Detainee Procedures Improvement Act (Senate, proposed by Senators McCain, Graham, Lieberman and others) fits the bill.
These proposed bills are based primarily on fear. On the fear that civilian courts cannot handle terrorism cases and on the fear that courts will not defer completely to the Executive’s claims of national security when faced with grave violations of individual rights.
The first fear is unfounded.
Since September 11th, over two hundred suspected terrorists have been prosecuted in federal courts with a conviction rate over 91%. We have hundreds of convicted foreign terrorists in prison in the U.S. right now. In contrast, fewer than five have been tried before the military commissions and most of those have already been released. The military commissions have seen significant improvement from their first iteration, but still remain barely tested both in substance and numbers of prosecutions.
These numbers demonstrate that completely foreclosing all trials in civilian courts and all transfers of detainees to the United States is not grounded in careful policy analysis. It seems to be based instead on the fear of those who are suspected – not proven – of trying to kill Americans, and a reactive desire to therefore deny them rights. The worst serial murders in U.S. history got full and fair trials. What is it about the word “terrorist” that makes us forget where we come from?
But it is the second fear that should catch the breath of every American.
The proposed bills simply legislate the courts out of the picture altogether. The annual periodic review process created to assess the continued detainability of detainees at Guantánamo (or future detainees) has no appeal process. This is important enough to repeat – no appeal process. There is no doubt that an annual review is better than long-term detention with no review process at all. This incremental improvement is insignificant, however, when the review board is not accountable in any way to a court or any other method of independent judicial review.
The Senate bill actually goes one step further still. In a total bow to Executive authority, the legislation states that the review panel’s finding regarding a detainee’s continued detention is simply a recommendation and does not bind the President. This is the ultimate dagger in the heart of separation of powers and checks and balances – a Congressional license of complete Executive authority and no courts to say otherwise.
The Geneva Conventions do not, to be sure, mandate judicial review of all detention determinations, either for prisoners of war under Article 5 of the Third Geneva Convention or under Article 43 of the Fourth Geneva Convention. Both require necessary guarantees of independence and impartiality, not a particular type of forum, judicial or administrative or other. Beyond the fact that the proposed legislation raises serious questions about whether the review panels can meet this test, the lack of judicial involvement in the long-term detention review process poses a much greater problem. As I discussed in my recent article, on which I previously posted, to call the indefinite detention at Guantánamo – both ongoing and future – detention “under the laws of war”” is a significant stretch of the traditional concept of law of war detention. When we do not know how long this conflict will last or the parameters of the battlefield, when detention effectively serves a punitive purpose rather than a protective purpose, judicial engagement in the process is critical to ensuring protection of individual rights.
The only reason to keep the courts out, as the proposed legislation seeks to do, is the fear that the courts will not approve of the process, either in individual cases or overall. The fear that courts might actually inject individual rights into the equation, upsetting the current complete dominance of national security interests over any other interest, no matter how fundamental.
We have learned the lesson of an unchecked executive before – with the suspension of habeas corpus during the Civil War and the internment of Japanese-Americans during World War II – and in both cases it was the courts that set us back on course and restored the balance between national security and individual rights.
As detailed in IntLawGrrls' many posts on Guantánamo, when detention there threatened to become truly a legal black hole in the first years after September 11th, the Supreme Court repeatedly held that detainees at Guantánamo have a right to legal representation and to habeas corpus – in essence, a right to exist in a legal framework. Let’s give our courts a direct role in that legal framework – detention without trial raises extraordinary challenges to American values; independent and robust judicial review throughout the process can help to mitigate those challenges and the risk to fundamental principles.
Supporters of indefinite detention – and likely of the proposed bills in the House and Senate – staunchly defend it as “detention under the laws of war.” If the detention is founded on fundamental legal principles signed and ratified by every nation around the world, then why
keep the courts out of the business of reviewing and assessing the lawfulness of such detention?Legislating based on panic is neither moral nor effective. America needs a counterterrorism strategy – including detention of suspected terrorists where appropriate – that is based on sound legal principles and paradigms, not just on the fear of a future attack.
Sadly, as with the Japanese-Americans who were forced into detention camps during World War II, U.S. law and courts allowed these arrests and detentions of persons with German connections with little or no proof of Nazi sympathies, much less subversive activities. 
