Detainee Due Process in the War on Terror

When Congress passed the law that will govern how terrorist suspects can be tried in military tribunals, it acted just like the Founding Fathers would have wished. It stuck fast to principles, the bedrock of values and beliefs that this nation stands for — and it compromised on particulars.The Defense Department holds about 350 detainees at Guantanamo Bay who are considered enemy combatants and whom the military believes would fight America and its allies if released. Like all captured enemies, these detainees should be held for the duration of hostilities or until the military is satisfied that they pose no further threat.This is how enemies captured in wartime have traditionally been handled. Military leaders believe, however, that some of these detainees have committed serious war crimes. They wanted, and rightly so, to bring them to justice. That’s where Congress comes in.This summer, the Supreme Court ruled that Congress must explicitly authorize the commissions used to try alleged war criminals. The administration was right to argue against using the Uniform Code of Military Justice or the regular civilian court system as a basis for these trials.Both are traditional legal systems that put the protection of individual rights first, ahead of accommodations for national security and military necessity. This system is not appropriate for trying terrorists in the Pentagon’s custody while the war is still going on.Instead, the Bush administration proposed a judicial process that foremost protects national security interests while also including procedural protections to ensure due process.
Meanwhile, the Senate Armed Service Committee authored a competing version of legislation for the “military commissions” that would try the alleged war criminals at Guantanamo. Intense negotiations between the House, Senate and White House produced a compromise that Congress passed last week.

Three principles were at stake in the debate — ones that should be used to grade the compromise. Any suitable legislation would have to 1) respect the rule of law, 2) guarantee the basic human rights to the defendants and 3) respect the legitimate national security interests of the United States. By any fair measure of the legislation, Congress did all three.

In stipulating the procedures that will be used to interrogate defendants, Congress fulfilled the Supreme Court’s mandate of specifically authorizing the rules for trials. It was Congress’ job to ensure that all the equitable elements of due process, such as the right to counsel, were included. Congress did this.

Congress also stipulated that these procedures complied with Common Article 3 of the Geneva Conventions. This measure was designed to reassure the rest of the world that the United States takes seriously its responsibility to respect the basic human rights of all persons, on and off the battlefield.

Finally, Congress ensured that adequate measures were taken to protect legitimate secrets and the “sources and methods” used to obtain them. Some complain that other war crimes trials, such as the Nazi Nuremberg trials and the prosecutions of Bosnian war criminals at the Hague, did not allow for “secret” evidence.

But there is a significant difference. Those trials didn’t take place during a war when enemies on the battlefield might use the information to their advantage. Under the congressional rules for military commissions, defendants will still be able to know about and challenge evidence — they just won’t be able to give away America’s secrets.

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