Senators McCain and Lieberman recently put forth a proposed bill entitled “The Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010,” that is aimed at setting standards for interrogation and detention of suspected terrorists. The bill is really an amalgamation of ideas that have been thrown around over the past several years about what happens to terrorist suspects have once they are apprehended, but it does contains some specific proposals that have been absent from past bills. While this is a new bill the solution is proposes at its most basic level is not: It seeks to bypass the civilian criminal justice system in terrorism cases in favor of a system administered by the military.
Here is how the bill envisions handling terrorist suspects from apprehension up through prosecution. When a suspect is apprehended a determination is made as to whether the suspect will be treated as a suspected terrorist, or, as the bill refers to it, a “high-value detainee.” A suspect’s status rises to the level of “high-value detainee” based on factors including: threat to U.S. citizens or property domestically or internationally, intelligence value, affiliation with al Qaeda, or other situational factors. Once the “high-value detainee” status is determined the suspect is placed in military custody for interrogation purposes.
With respect to interrogation the bill explicitly removes the suspect’s Miranda rights. This is also the first bill to explicitly mention, and give responsibility of interrogation to, an interagency unit known as a “high-value detainee interrogation group”, or HIG group for short. The HIG group itself is not new, some argued it should have been used in the case of the Christmas Day bomber, but this is the first bill to attempt to give it sole power over interrogation. The HIG group’s main responsibility under this bill is to gather as much intelligence from the suspect about attacks against the United States as possible.
The HIG group’s other major responsibility is to make the initial determination about whether or not the suspect is an “unprivileged enemy belligerent.” The final determination of whether a suspect falls under this category is made by the Secretary of Defense and Attorney General subject to review by the President and relevant congressional committees. The final status determination is supposed to be made within the first 48 hours after the suspect is turned over to military custody.
The “unprivileged enemy belligerent” status plays a vital role because it forms the basis for its most controversial proposals. The bill calls for those determined to be “unprivileged enemy belligerents” to be detained indefinitely and without criminal charge until hostilities cease (which may never cease). This applies to both U.S. citizens and non-citizens alike. Furthermore, the bill precludes the Department of Justice from spending any money on prosecuting someone who is determined to be an “unprivileged enemy belligerent.” This means that someone with belligerent status must be tried by a military court.
The fatal defect in this bill is that it essentially removes the civilian justice system from dealing with terrorists. It could be argued that the bill is only aimed terrorists affiliated with Al Qaeda, but the bill could easily be read to encompass all terrorists. Because it attempts to shut out the civilian justice system completely it doesn’t offer a truly new idea in the debate over how to handle terrorism prosecutions, it simply brings us back to the binary choice between civilian justice or military justice. We shouldn’t have to choose between one or the other because circumstances could make either one appropriate. If a terrorist is apprehended on the battlefield in Afghanistan or Iraq it would probably be more appropriate for the military to deal with him. If one is arrested in Detroit after trying to blow up an airplane then there is no reason to involve the military.
Even former officials from the Bush administration have weighed in saying that completely excluding the civilian justice system unnecessarily hamstrings potential terrorism prosecutions in a number of ways including: getting terrorists to cooperate, getting other countries to extradite terrorists to the U.S., and the potential for overturning terrorist convictions on appeal from military commissions. The civilian justice system has an established track record in dealing with high-profile terrorism trials, and removing it from our arsenal in the against terrorism is a mistake.