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October 06, 2011

Reid on CT Legislation
Posted by James Lamond

For those who missed it this week, Senator Reid sent a great letter to Carl Levin and John McCain, regarding detainee provisions in the 2012 Defense Authorization Bill. In the letter, Reid says that he will not bring the bill to the floor while it has three controversial provisions in it. He specifically cited the provisions that authorize indefinite detention (section 1031), require military custody for terrorism suspects (1032), and transfer restrictions on current detainees (1033). 

Daphne Eviatar of Human Rights First describes the effects of the bill saying:

this would be the first bill authorizing military detention of suspected insurgents since the McCarthy era, when Congress passed the Internal Security Act to allow the government to indefinitely detain suspected Communists.

If the Committee's bill became law, military detention would actually be required for all suspects who are not U.S. citizens, which could cut the FBI -- our best-trained experts on investigating international terrorism -- out of these critical cases. It would also make it far more difficult to prosecute terrorists later.

Replacing an effective system – the FBI and other law enforcement that have an expertise in counterterrorism – with required military detention makes make little sense. Beyond stretching the military into roles it was neither designed, nor wants, to handle, it is a logistical nightmare. Requiring the military to be police and jailor would mean that military officers would have to arrest and hold terrorism suspects throughout the country. Outside of a handful of cities, which have large bases that might be able to handle this, the infrastructure, facilities, capabilities and training simply do not exist. In a recent letter to Congress a  group of retired generals and admirals warned that the provisions “would transform our armed forces into judge, jury and jailor for foreign terrorism suspects,” distracting from the military’s core mission: “to prosecute wars, not terrorists.”

However, what is most ironic with all of this is the timing. The debate is going public the same week the trial of Underwear Bomber commences. Abdullmutallab was arrested and successfully interrogated by the FBI after he attempted to blow up an airliner over Detroit on Christmas day 2009. He now faces justice in a criminal court, without any of the drama or fanfare that opponents of criminal courts fear.

At a more substantive, less news hooky, level though, the timing is even worse. The Obama administration has made clear that the use of civilian courts is a key component of the overall counterterrorism strategy. John Brennan recently outlined this component of the strategy in remarks at Harvard Law School. He explains some of the more pragmatic benefits: 

For when we uphold the rule of law, governments around the globe are more likely to provide us with intelligence we need to disrupt ongoing plots, they’re more likely to join us in taking swift and decisive action against terrorists, and they’re more likely to turn over suspected terrorists who are plotting to attack us, along with the evidence needed to prosecute them.

When we uphold the rule of law, our counterterrorism tools are more likely to withstand the scrutiny of our courts, our allies, and the American people.  And when we uphold the rule of law it provides a powerful alternative to the twisted worldview offered by al-Qa’ida.  Where terrorists offer injustice, disorder and destruction, the United States and its allies stand for freedom, fairness, equality, hope, and opportunity.

The Obama administration’s has had a pretty successful counterterrorism record - particularly in 2012 - from getting  bin Laden to breaking terrorist finances to actually leveraging a more global response. In addition, the public agrees. Even as the President’s numbers have dipped, Obama always had strong  approval on his handling of terrorism  - even before bin Laden. 

This looks to me to be both bad policy as well as bad politics. 

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