A new system of justice to improve national security

Winston Churchill once quipped that Americans always do the right thing after exhausting all other options. When it comes to our policies on detaining enemy belligerents, we have met Churchill’s low expectations with an arbitrary system that has damaged our national security and harmed the United States’s credibility abroad. Now is the time for Congress to make the necessary changes to bring our detention policies in line with America’s historic commitment to the rule of law, and to justice and human rights.

 Whether at Guantanamo Bay, Cuba, or Bagram air base in Afghanistan, hundreds of individuals are trapped in the cracks between the criminal and military justice systems, left in indefinite detention without access to lawyers, an explanation of the charges against them, or a trial to determine their guilt or innocence. They are outside our laws but inside our prisons, at the mercy of a system that is bad for our national security, bad for human rights, and downright horrible for America’s image in the world. Some may indeed be guilty of committing terrible crimes. Others are innocent and should be freed. Either way, the failure to establish a process consistent with the rule of law and America’s values has muddled our efforts to combat terrorism and provided al Qaeda with a major recruiting tool.

 

Congress must act to make the changes necessary to ensure a transparent and accountable judicial process, one that enables the United States to bring terrorists to justice, quickly release those innocent of any wrongdoing, and protect our national security by continuing to detain those who pose a dangerous threat.

 Unfortunately, Congress has become bogged down in a myopic obsession with whether or not to close the detention facilities at Guantanamo Bay, which President Barack Obama promised to do by January 2010.  The not-in-my-backyard focus on preventing detainees from being transferred to the United States ignores the larger picture.

Even if Congress succeeds in preventing President Obama from closing Guantanamo, by refusing to allocate funding or outright barring detainees from being transferred to U.S. prisons, we will still be stuck with the same inadequate system of justice to address our national security needs.

 It is the policy, not the place, that Congress should be debating. Merely addressing the issues at Guantanamo will not solve the problems at Bagram, or put in place a process to deal with individuals we will need to detain in the future. I know that many print, TV, radio and Internet commentators argue that Congress lacks the will and courage to develop such comprehensive legislation. I disagree. Moreover, this is a problem that cannot be left to the executive branch alone to develop, or to the judiciary to work out in the courts. Congress has the responsibility to put in place the laws that will ensure an effective system of justice.

 Over the last several months I have met with administration officials, academics, lawyers and human rights groups to discuss developing such a policy. On Oct. 6, I introduced H.R. 3728, the Detainment Reform Act of 2009. This legislation presents a plan for dramatic change, contemplating policies and guidelines to address the myriad of challenges we face in reforming our outmoded detainment system. My bill creates specific definitions for who can be detained and provides for a process of judicial review. This ensures that individuals do not languish in detention for years without being charged.

Under my bill, the government will have 14 days to set in motion judicial proceedings to determine whether an individual can be charged with an offense, transferred or released to either his country of origin or another country, or held should the government petition for his detention. But in this last instance, the government will have to demonstrate enough cause to hold someone as an imperative threat to security, leaving a judge to weigh the argument and determine how dangerous an individual is to national security. The initial detention is then subject to periodic review. The government can only detain an individual for as long as it can continue to convince a judge that the individual remains a threat. My bill also provides for International Committee of the Red Cross access to each detainee.

Ultimately, this legislation establishes a system of due process unique to the complicated non-traditional enemy-belligerent situation, ensuring that we can prosecute those who commit crimes while expeditiously releasing those who pose no threat.

Congress needs to move beyond debating Guantanamo and instead confront the reality of a process that is actively harming our country. We need to put aside demagoguery and political point-scoring. Let us heed Frederick Douglass, who noted that “the life of the nation is secure only while the nation is honest, truthful, and virtuous.” Reforming our detention policies along the lines described in my bill will do just that. Our detention policies will align with the Constitution, international human rights agreements, and the law of armed conflict. The United States will be able to bring to justice those who have committed crimes while also continuing to detain those who mean us harm. By bringing our commitment to human rights and the rule of law even to those we suspect of terrorism, we deprive al Qaeda of a powerful recruitment tool and at the same time protect our country without departing from our underlying ideals.
 
Hastings is vice chairman of the House Permanent Select Committee on Intelligence, a senior member of the House Rules Committee, and Co-Chairman of the U.S. Helsinki Commission.