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| Thoughts on the "Detainee Problem" |
| 2005-10-26 |
| Perhaps the most persistent policy and legal problem for our democracy as we wage the global war on terrorism is the classification, treatment and interrogation of suspected terrorist "detainees" that we hold outside the United States. Rather than just beating up on the Defense Department for it's custodial handling of these detainees, the Congress has the power to address the problem comprehensively. And this is required, because the "detainee problem" is going to be with us for some time - at least as long as there are radicals bent on attacking us. There are really three basic "detainee problems: Abu Ghraib While embarrassing and a public relations nightmare, the soldiers from Abu Ghraib prison committed straight forward military crimes and are being punished for them; the longer term "corrective action" required - already under way - is much better training, closer oversight and leadership accountability for these kind of custodial duties. These abuses are addressable within the military, but Congress should continue to inquire about these matters to make sure that the military to does it right. The categorization or 'status' of detainees This is far more technical and requires a more deliberate and exacting approach. This begins with carefully crafted definitions that are most amenable to statute. This is by far preferable to allowing the federal district courts, on a case-by-case basis, to determine such policy laden international legal issues when they are asked to hear habeas corpus petitions of an individual prisoners' detention status. More fundamentally, the access to a U.S. court by a non-U.S. person detainee held overseas should probably be prohibited by statute - Congress can do this in such matters of national security and the Supreme Court has traditionally not interfered with these determinations. Finally, more precise definitions of detainee status would also determine how, or where, detainees could be prosecuted for terrorist related crimes. Interrogation The enablement of authorities and procedures by which detainees are interrogated for valuable, terrorist related information should be established by statute, even though the president no doubt has the inherent authority to establish such rules, at least for non-U.S. persons held outside the U.S. Congress, for example, could establish a procedural framework for interrogation rules and a system of oversight similar to what it has created for intelligence operations and other specialized activities. Sen. Lindsey Graham, R-S.C., held a hearing last July on detainee issues with panels of experts, including former Attorney General Barr and the service Judge Advocates General. Sen. Graham, himself a reserve Air Force Judge Advocate and Military Judge, clearly wants to help solve these intricate problems in a way that will keep U.S. courts away from detainee operations in general and allow a full spectrum of detainee human intelligence activities, which is so critical to rooting out terrorist planning and support. But Graham didn't get a lot of support for his ideas. Mr. Barr, while fully understanding the issues, was far more concerned about protecting traditional presidential prerogatives - for example, determining who is an "unlawful combatant" - than acknowledging the inherent value of Sen. Graham's offer to help. This is somewhat understandable: The Justice Department's traditional view (regardless of administration) is that it must defend and protect all Presidential prerogatives at all costs, even if it means fighting protracted legal battles that ties the Defense Department in legal knots as it tries to fight the war on terror. The lawyers have "won this one," apparently, because the administration has officially said that it would veto legislation that included these kinds of provisions and renewed this threat last week, in reaction to much milder amendments offered by Sen. John McCain, R-Ariz. Still pending is an additional amendment from Sen. Graham that even more comprehensively addresses the core detainee legal and policy problems, as described above. It's time for cooler heads in the administration to direct the lawyers to get on board with what Graham wants to do. Instead of opposing his initiatives, the Defense and Justice Departments should sit down and work with the senator to help craft an acceptable legislative solution to the myriad definitional, custodial and interrogation problems that now beset our detainee operations overseas. If we can't do this, we risk becoming the world's courthouse for unending litigation on detainee issues - a no-win situation for us. Daniel Gallington is a senior follow at the Potomac Institute for Policy Studies in Arlington. |
| Posted by:Bobby |
| #1 They're enemy combatants fighting out of uniform. They should have been interrogated and then shot immediately after capture. The lack of blowback associated with this time tested method is worth giving up a little intel. It also gives us 100% assurance that jihadis won't be released back into the swamp by some soft judge. But I guess that horse is already out of the barn... |
| Posted by: Parabellum 2005-10-26 18:12 |