This past week, the House Armed Services Committee was to consider Democratic-introduced legislation that would grant habeas corpus rights to foreign terrorist detainees. In a last-minute move, they decided to cancel today’s proceedings.
Did the Democrats see the light and decide to scrap this bill altogether? Probably not, as it will more than likely pick back up next week. A delay in this case is a good thing though. It might give the committee more time to discuss the proposed legislation behind closed doors in a bipartisan manner to ensure all members understand the stakes of this proposal.
Last Congress we passed the Detainee Treatment Act and Military Commissions Act, which ensures we’re able to detain, interrogate and try terrorists consistent with the Constitution and international laws. This is working. Just yesterday, the Court of Military Commissions Review decided a case that will allow the prosecution of terrorists to go forward.
We need to take a critical and practical look at the bill proposed by the Democrat majority. I believe there are three key impacts we need to address and that the American people need to be fully aware of as they study the arguments to this issue.
(1) It gives foreign terrorists more legal protection than our own citizens and more than an enemy prisoner of war receives under the Geneva Convention and international law.
In practical terms, Habeas means a Guantanamo detainee will have direct access to federal court to challenge his imprisonment. Without Habeas, the Combatant Status Review Tribunal (CSRT), created by law just last year, determines if he’s an enemy combatant and the Court of Military Commissions decides if he committed war crimes. Both of those decisions are reviewable by the U.S. Circuit Court of Appeals for the District of Columbia and the Supreme Court of the United States.
Al Qaeda member Khalid Sheikh Muhammad testified at his CSRT in March 2007 that he was behind the terrorist attacks of September 11, 2001. He swore allegiance to Osama bin Laden and admitted to being a primary participant and planner in 31 other operations to include the 1993 World Trade Center bombing; the decapitation of Daniel Pearl; plans to bomb New York bridges, the New York Stock Exchange, U.S. military bases overseas; and to destroy 12 U.S. civilian aircraft in the “Bojinka plot.”
Khalid Sheikh Muhammad is an evil man. Despite this, he is afforded 28 rights under the current guidelines. This individual, who barbarically beheaded Daniel Pearl, has more rights than if he were a prisoner of war. But if the law is changed, he could bypass the established procedures of the CSRT and Court of Military Commission and directly challenge his detention in U.S. District Court, the U.S. Court of Appeals for the D.C. Circuit, and the Supreme Court. This direct access to federal court could tie up his case in endless litigation.
(2) The proposed change in the law would create an incentive for terrorists to not follow the rules of warfare and employ asymmetric tactics. This means, if this legislation is passed, instead of fighting U.S. forces as a combatant according to the Geneva Convention and international laws, it is in a foreign fighter’s best interest to not receive enemy prisoner of war status if captured by American personnel. After all, he would receive more due process and protection if eligible for a Habeas Corpus hearing. Why follow the rules if there is no consequence to breaking them… or worse yet… an incentive to not follow them.
(3) This proposed legislation would strengthen the detainee’s resolve. Foreign terrorists will see filing a writ of habeas as their duty. They’ll be trained to remain silent during interrogation in the expectation of relief in a federal court, and timely intelligence will suffer.
The al Qaeda training manual obtained during a 2000 raid, otherwise known as the “Manchester Document,” includes guidance on how to prepare for capture. For example, Lesson 17 of the manual concerns interrogation and includes guidance such as “ask that an attorney be present with him during the questioning process” and “he should say that he was tortured, deny all his prior confessions, and ask that the interrogation be repeated.” Lesson 18 provides guidance after an indictment is issued such as “complain to the court of mistreatment while in prison,” a tactic incidentally used by Khalid Sheikh Muhammad. We do not want to add “request a writ of Habeas Corpus” to such training documents.
Federal court rules under this proposed measure would allow terrorism suspects the mechanism to subpoena American personnel, taking them away from ongoing operations. Important to note are the tactical differences between criminal investigations and arrests as opposed to counterterrorist operations.
Our military and intelligence agency personnel should not be required when prosecuting an operation to provide foreign terrorists the same protections expected in a civil court. Capturing a terrorist during a dynamic and high-risk operation overseas does not lend itself to the same evidence handling procedures consistent with arresting a suspect who is subject to the civilian legal process.
This past July the Court of Appeals for the D.C. Circuit Court issued an opinion with respect to Combatant Status Review Tribunals that demonstrated the existing process provides detainees in Guantanamo with an unprecedented, robust review of their status as enemy combatants. The Bismullah case is just the latest example of the courts upholding the congressionally mandated detainee policy. We should not be going down this path of granting additional rights to foreign terrorist detainees. We need to give this current system a chance to work.
Jim Saxton, New Jersey Republican, is a member of the U.S. House of Representatives.