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Senate judiciary subcommittee urged to reject 'prolonged detention' policy

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] The US Senate Judiciary Committee's Subcommittee on the Constitution on Tuesday heard testimony regarding the "legal, moral and national security impact" of long-term, indefinite detention without trial of terrorism suspects. Judiciary Committee Chairman Senator Patrick Leahy (D-VT) said that the hearing was intended to advise the committee about "various proposals for preventive detention that have been debated in recent months by experts and academics." Sarah Cleveland, Professor of Human and Constitutional Rights at Columbia Law School, said that she was asking Congress "to resist any effort to authorize the United States to establish an indefinite detention system for terrorism suspects seized outside a traditional battlefield." Saying that "prolonged detention without trial offends the world's most basic sense of fairness," Cleveland concluded that the "Constitution does not recognize a roving power to detain dangerous persons as a substitute for criminal trial." Tom Malinowski, Washington advocacy director for Human Rights Watch, said that the US criminal justice system was the best alternative to continued detention of suspects who can't be returned to their country of origin. Elisa Massimino, CEO and Executive Director of Human Rights First said that, although there has not been a "full public accounting of the strategic and operational cost" of indefinite detention, "there is plenty of evidence to suggest that continuing down the road prolonged detention without trial will continue to undermine our security." Former Assistant Attorney in the Eastern District of Virginia David Laufman told the subcommittee that his experience prosecuting terrorism-related cases after the September 11 attacks convinced him that "terrorism prosecutions should be brought in Article III courts whenever possible" because doing so would confer "greater legitimacy on these prosecutions." David Rivkin, Co-Chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies, discussed the history of detaining "unlawful combatants" in prior American conflicts, calling the detention of al Qaeda and Taliban members for the duration of hostilities a "legal and ... immensely reasonable" policy. Richard Klingler, formerly General Counsel to the National Security Council and Senior Associate Counsel to President George W. Bush, said that the country has a moral obligation to protect its troops and that a "detention practice that is lawful, that focuses on discrete groups of foreigners abroad who would harm our troops and citizens, and that avoids alternatives that undermine the rights of U.S. citizens has a strong moral claim." The committee held the hearing after US President Barack Obama said last month, during a national security speech, that it may be necessary to continue detention without trial of some terrorism suspects after the closure of Guantanamo Bay. In addition to questions about prosecuting terrorism suspects in federal criminal trials, Obama's plan to close the facility within one year, announced in a January executive order, has been hampered by Congressional funding issues in both the House and Senate and by difficulty finding countries willing to take released detainees

Full post as published by JURIST - The Paper Chase on June 09, 2009 (boomark / email).