Trying Terror Suspects: The Impacts on Security and Liberty

February 27, 2008

Rights and Provisions

After being detained by U.S. military authorities, six suspected terrorists housed at the Guántanamo Bay U.S. Naval Base were officially charged by the Pentagon last week. The prisoners have been individually charged with murder, conspiracy, attacking civilians, terrorism, destruction of property, and other crimes related to their suspected roles in the September 11, 2001 attacks. The Department of Defense is seeking the death penalty in each case, and the suspects will be tried as enemy combatants by a military tribunal.

The impending trials and questions regarding the legal rights of the accused have brought the issue of trying enemy combatants into the national spotlight and renewed the debate over how to resolve the need for increased security without stripping away civil liberties.

The process by which the six will be tried is outlined under the provisions of the Military Commissions Act (MCA) enacted by Congress and signed into law by President Bush in 2006. The stated intent of the MCA is "to authorize trial by military commission for violations of the law of war, and for other purposes."

The MCA was created in the wake of the 2006 Supreme Court case Hamdan  v. Rumsfeld. In that case, the Supreme Court ruled the plaintiff–a Guantánamo detainee–could not be tried by the military commission set up by the Bush administration because "its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949." The Court also decreed that the Bush administration could not create military commissions without first obtaining congressional authorization. The MCA represents an agreement between the executive and legislative branches of government on ways in which enemy combatants can be tried fairly.

Identifying the Enemy

The MCA defines an “unlawful enemy combatant” as a person who

(i) has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its cobelligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaeda, or associated forces)

(ii) before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the president or the secretary of defense

Under the MCA guidelines, the accused may be represented by a lawyer, appointed or approved by the commission. Defendants are permitted to present evidence and call witnesses and have the right to appeal any sentence.  Unlike civilian courts in the United States, a conviction requires a two-thirds majority vote from the jury, which consists of military personnel.  Also unlike civilian courts, hearsay and evidence obtained as a result of coercion can be admitted as evidence by the prosecution. The MCA’s most controversial provision, however, is its elimination of the jurisdiction of federal courts to entertain habeas corpus (a legal action, or writ, through which a person can seek relief from unlawful detention of himself or another person) of those deemed enemy combatants. Thus, individuals accused of being enemy combatants can be detained indefinitely without having been charged with a crime and with no legal recourse to challenge their detainment.

Due Process and Human Rights

The MCA has generated controversy over the rights of detainees accused of being enemy combatants. Human rights organizations have argued the suspension of rights and due process constitutes human rights abuse.  In addition to these nongovernmental agencies, politicians and others have expressed their opposition to the bill and called for its repeal; some have demanded Guantánamo Bay be shut down.

In addition to the suspension of habeas corpus, another controversial aspect of the upcoming tribunal centers around the use of coercive interrogation procedures on enemy combatants. Central Intelligence Agency director Michael Hayden recently stated that three prisoners at Guantánamo had been subjected to waterboarding­-an interrogation technique that has been criticized as constituting torture. According to transcripts released by the military, one of the six who will be tried by the military tribunal, Khalid Shaikh Mohammed, has confessed to masterminding the September 11, 2001, attacks as well as other terrorist activities: decapitating kidnapped Wall Street Journal reporter Daniel Pearl as well as attempting to kill the pope and two American presidents. The CIA has admitted that at least some of the information gleaned from Khalid Shaikh Mohammed came about because of waterboarding.

Defining Justice

Beyond the necessity of apprehending and prosecuting enemy combatants, concerns surround the legality of measures used to surveil and question suspects, such as warrantless wiretapping and the indefinite detention of enemy combatants.

Hoover senior fellow Peter Berkowitz, chairman of Hoover's Koret-Taube Task Force on National Security, explains that the war against terror does indeed pose formidable challenges for the American legal system, in part because the United States is facing a threat "unlike any other in its history." Berkowitz states that, unlike previous enemies of the United States, this new enemy is "not part of a nation-state, does not fight in uniformed troops against other armies in uniformed troops, and does not limit itself to conventional armed conflict but instead targets civilians or operates in civilian areas, and its threat could continue for decades."

Journalist and Brookings fellow Benjamin Wittes (also a member of Hoover's Koret-Taube Task Force on National Security and Law) argues that "we cannot escape the fact that legal rules are inevitably less absolute, less truly legal, in this context than, for example, in the domestic civilian context."  He argues, further, that the existing judicial review process as it pertains to enemy combatants is too ambiguous and calls for the U.S. government to clarify it. He proposes "Congress should write into law the procedures that consign people to detention for life at Guantánamo, make them significantly more generous to the accused, and structure judicial review for the narrow purpose of holding the military accountable to these clear statutory commands." Wittes also contends that, although direct judicial review might not placate everyone, it offers "a far simpler and more efficient means of ensuring compliance with procedural rules than does a habeas regime without a clear set of standards to enforce." —Michelle Bussenius, Editor