- The Washington Times - Tuesday, July 14, 2009

Circulating in White House corridors and through Justice Department offices is a proposal for the creation of a controversial new national system of preventive detentions. This latest proposed anti-terrorism measure might be merely an attempt to better meet the “need to incapacitate dangerous people,” or it might extend so far as to encompass the “full gamut of national security issues from intelligence gathering to prosecution.”

Not since the infamous 1950 McCarran Emergency Detention Act, passed over President Truman’s veto, has serious consideration been given in America to a program that would surrender to the executive branch the power to indefinitely detain security “suspects.”

Should the Obama administration, awaiting a special commission report on the subject by July 21, adopt such a course, suspected terrorists and sympathizers could be subjected to long “civil” or “administrative” detention without trial or access to the panoply of due-process rights guaranteed to legally arrested and grand-jury-indicted suspects deemed to be dangerous. Perhaps most troubling is that these proposed “abbreviated” emergency measures might be instituted not through an act of Congress but via an executive order by President Obama.

More than seven years after the arrival of the first 20 suspected terrorists at Guantanamo Bay’s Camp Ray X, the federal government remains befuddled by the legality, status and future of the 239 remaining detainees, gathered from diverse corners of the world, still within the walls of America’s Cuban outpost. The legal reasoning for confining these detainees, initially designated “unlawful enemy combatants,” has remained uncertain and confused.

Following the “war” against al Qaeda, the Departments of Justice and Defense have struggled to marshal an effective, yet just, system of laws against the suspected enemy. Seeking to disrupt and prevent terrorism’s future acts of violence (as contrasted with criminal law’s primary task of punishing offenders for crimes already committed), the George W. Bush administration chose to go the law-of-war route rather than criminal-law route.

By labeling terrorism suspects “unlawful enemy combatants,” the government sought to use the military modality’s broader executive powers in order to bypass the due-process requirements of the Fourth, Fifth, Sixth and 14th Amendments to the Constitution, which were deemed as impediments to the state’s exercise of emergency powers.

Through Congress’ subsequent passage of the Military Commission Act of 2006, “unlawful enemy combatant” terror suspects became subject to seizure, detention, prosecution and punishment without compliance to the traditional rules of criminal law or the law of war.

Application of the military modality has continued as one of the most debated remnants of the Bush presidency. But the architects of the “unlawful enemy combatants” approach failed to appreciate the complexity of the international law of war as well as the reluctance of the U.S. courts and legal community to derogate from the nation’s traditional constitutional law doctrines and due-process safeguards.

With the perceived inadequacy of both the criminal law and the law of war in coping with the unique needs of the war on terror, the question has remained: Just how and where are dangerous terrorism suspects to receive the right treatment in the United States, a country represented as a beacon of liberal democracy?

But while the contest has continued between the “due process” advocates and those satisfied with an expediency provided by the law of war, a new and third alternative approach has been gaining momentum — the resort to civil or administrative detention for terrorism suspects.

Relatively informal civil commitments to asylums and mental institutions of mentally ill or disabled persons found to be dangerous to themselves or others have long been practiced in the United States. Yet complaints of abuse frequently have required the introduction of substantive and procedural reforms.

The expansion of so-called civil commitments to nonmedical emergencies has been similarly challenged, but the trend has continued. Various wartime emergency measures resorted to civil commitments from time to time in order to confine thousands of suspects: most notably accused Southern “sympathizers” during the Civil War and persons of Japanese ancestry during World War II.

At the height of the post-World War II Red Scare, the McCarran Act similarly authorized incarceration of “each person as to whom there is reasonable ground to believe that such person probably will engage in … acts of espionage or of sabotage.”

Mr. Obama’s latest pronouncements denote that a contemporary version on the McCarran Act might be reincarnated. In a March 13 court Memorandum Related to Detainees Held at Guantanamo Bay, the government did not cite the old disputed “unlawful enemy combatant” terminology. Instead, the government’s power to detain suspected persons was claimed to be derived from the country’s inherent right of self-defense and from the 2001 congressional authorization of the president’s use of military force.

One may, therefore, be reasonably justified in concluding that the administration is seeking to hurriedly fashion a sound body of law to enhance the executive branch’s authority to institute a system of preventive detentions, much as the McCarran Act did before.

Wise counsel requires that care be taken to avoid errors similar to those committed by the former administration’s advisers. In its 1971 repeal of the McCarran Act, Congress explicitly instructed: “No citizens shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress” (19 USC 4001(a)). That demand, enhanced by making it applicable to citizens and noncitizens alike, must be honored scrupulously at times of exigency.

Moreover, the grand restructuring of America’s traditional processes of justice clearly would increase the potentials for human rights abuses and should not be undertaken in haste. A recent worldwide study of preventive detention practices by the Geneva-based International Commission of Jurists reported that “the use of administrative detentions in the past has led to serious human rights violations.”

As far back as 1964, the U.S. 4th Circuit Court of Appeals warned that “[t]he creation of nonmedically determinable category of person who may be confined for indeterminate periods by a civil proceeding is so serious a departure from traditional concepts of justice that it deserves a critical analysis in the broadest terms.”

The call for critical analysis requires, at minimum, broad public hearings, expert review of the outcome of foreign experiences, and a clear determination that the pending proposals are not only constitutionally sound, but that their national security benefits are worth the risks the proposals pose to democracy’s present and future well-being.

Nicholas N. Kittrie, university professor of law at American University, is former counsel to the U.S. Senate Judiciary Committee and former senior fellow at the Justice Department’s Institute of Justice. This column was based largely on his forthcoming book, “Documentary Sourcebook on War, Peace and Global Security.”

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