Don’t limit terrorism trials

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Published: December 7, 2011 6:48 PM

A detainee from Afghanistan in custody at the

Photo credit: AP | A detainee from Afghanistan in custody at the U.S. Naval Base in Guantanamo Bay, Cuba (Feb. 2, 2002)

Almost a decade after the first people designated enemy combatants were locked away at Guantánamo Bay, the White House and Congress are again at loggerheads over the detention of suspected terrorists.

The Senate voted last Thursday to authorize indefinite detention without trial, and to mandate that suspected terrorists linked to al-Qaida and its affiliates who are not U.S. citizens be held and prosecuted only by the military.

Despite a bit of wiggle room in that requirement, the Senate bill would essentially prohibit using the civilian justice system’s courts and prisons in those instances, even for suspects taken into custody in the United States — and even though federal courts have proved far more effective than military commissions at convicting and sentencing terrorists. More than 300 people have been convicted of terror-related charges in federal courts since 9/11. Only six of about 776 men detained at Guantánamo since 2002 have been put on trial and convicted by military commissions, 598 have been transferred or released to other countries, seven died in custody and 171 remain incarcerated.

President Barack Obama said he will veto the $662-billion defense authorization bill, which passed the Senate by a bipartisan 93-7 vote, if the detainee provisions survive reconciliation with a House bill that was passed in July. He should. The House version also ties the president’s hands, by continuing to block the transfer of detainees from Guantánamo to the United States for imprisonment or trial by denying funding for those purposes.

How detainees are handled should be guided by two factors: the nation’s traditions of human rights and due process, which mean the United States should not imprison anyone indefinitely without trial; and the need to protect the American people, an interest best served by allowing the administration the freedom to use either military commissions or civilian trials to bring terrorists to justice. The choice of forum should be based on the facts, evidence and circumstances of each case.

Obama is wrong when he insists the war with terrorists makes it essential that he have the ability to detain suspects indefinitely in military custody — a power that the president arguably already has under the 2001 Authorization for the Use of Military Force. But he’s right to resist this attempt by Congress to limit his options, and those of future presidents, in choosing how to deal with terrorist suspects. If enacted, the Senate’s detention provisions would micromanage the work of national security professionals, denying them the flexibility they should have to handle individual cases in the way that best serves the country.

Ten years after 9/11, Osama bin Laden is dead. Al-Qaida is scattered and its leadership has been decimated. All U.S. combat troops will leave Iraq by the end of the year, and those in Afghanistan are on track to leave that nation by 2014.

At this point there’s no reason to ramp up the role of the military in dealing with terrorist suspects by writing such controversial detention practices into law.

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