A Detention Bill You Ought to Read More Carefully

Why is the national security community treating the “Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010,” introduced by Sens. John McCain and Joseph Lieberman on Thursday as a standard proposal, as a simple response to the administration’s choices in the aftermath of the Christmas Day bombing attempt? A close reading of the bill suggests it would allow the U.S. military to detain U.S. citizens without trial indefinitely in the U.S. based on suspected activity. Read the bill here, and then read the summarized points after the jump.

According to the summary, the bill sets out a comprehensive policy for the detention, interrogation and trial of suspected enemy belligerents who are believed to have engaged in hostilities against the United States by requiring these individuals to be held in military custody, interrogated for their intelligence value and not provided with a Miranda warning.

(There is no distinction between U.S. persons–visa holders or citizens–and non-U.S. persons.)

March 4, 2010

Mr. President, I rise to introduce legislation that sets forth a clear, comprehensive policy for the detention, interrogation and trial of enemy belligerents who are suspected of engaging in hostilities against the United States. This legislation seeks to ensure that the mistakes made during the apprehension of the Christmas Day bomber, such as reading him a Miranda warning, will never happen again and put Americans’ security at risk.

Specifically, this bill would require unprivileged enemy belligerents suspected of engaging in hostilities against the U.S. to be held in military custody and interrogated for their intelligence value by a “high value detainee” interagency team established by the President. This interagency team of experts in national security, terrorism, intelligence, interrogation and law enforcement will have the protection of U.S. civilians and civilian facilities as their paramount responsibility and experience in gaining actionable intelligence from high value detainees.

These experts must, to the extent it is possible to do so, make a preliminary determination whether the detainee is an unprivileged enemy belligerent within 48 hours of a detainee being taken into custody. The experts then must submit their determination to the Secretary of Defense and the Attorney General after consultation with the Director of National Intelligence, the Director of the Federal Bureau of Investigation, and the Director of the Central Intelligence Agency. The Secretary of Defense and the Attorney General make a final determination and report it to the President and the appropriate committees of Congress. In the case of any disagreement between the Secretary of Defense and the Attorney General, the President will make the final call.

A key provision of this bill is that it would prohibit a suspected enemy belligerent from being provided with a Miranda warning and being told he has a right to a lawyer and a right to refuse to cooperate. I believe that an overwhelming majority of Americans agree that when we capture a terrorist who is suspected of carrying out or planning an attack intended to kill hundreds if not thousands of innocent civilians, our focus must be on gaining all the information possible to prevent that attack or any that may follow from occurring. Under these circumstances, actionable intelligence must be our highest priority and criminal prosecution must be secondary.

Additionally, the legislation would authorize detention of enemy belligerents without criminal charges for the duration of the hostilities consistent with standards under the law of war which have been recognized by the Supreme Court. Importantly, if a decision is made to hold a criminal trial after the necessary intelligence information is obtained, the bill mandates trial by military commission where we are best able to protect U.S. national security interests, including sensitive classified sources and methods, as well as the place and the people involved in the trial itself.

Mr. President, it should come as no comfort to any American that nearly eight and a half years after the attacks of 9/11 we still don’t have a clear mechanism, legal structure, and implementing policy for dealing with terrorists who we capture in the act of trying to bring about attacks on the United States and our national security interests at home and abroad. What we saw with the Christmas Day bomber was a series of missteps and staggering failures in coordination among the most senior members of the Administration’s national security officials that have continued to be compounded by Administration apologists who still don’t seem to understand that repeating the same mistakes that were made in 2001 and 2002 is going to lead to the deaths of many more Americans.

The vast majority of Americans understand that what happened with the Christmas Day bomber was a near catastrophe that was only prevented by sheer luck and the courage of a few of the passengers and crew. A wide majority of Americans also realize that allowing a terrorist to be interrogated for only 50 minutes before he is given a Miranda warning and told he can obtain a lawyer and stop cooperating is not sufficient.

Let me be clear about where I think the fault lies with our current policy. I believe that the local FBI agents who were involved with investigating the Detroit attack are patriotic Americans who are experts in the field of law enforcement. I hold the FBI in the highest regard and believe they set the standard for law enforcement professionalism not only in the U.S., but internationally. But it is impossible for FBI field agents to know all the information that is available to the U.S. intelligence community worldwide during the first 50 minutes of interrogation of a suspected terrorist. We must ensure that the broad range of expertise that is available within our government is brought to bear on such high-value detainees. This bill mandates such coordination and places the proper focus on getting intelligence to stop an attack, rather than allowing law enforcement and preparing a case for a civilian criminal trial to drive our response.

Mr. President, deliberate mass attacks that intentionally target hundreds of innocent civilians are an act of war and should not be dealt with in the same manner as a robbery. We must recognize the difference. If we don’t, our response will be hopelessly inadequate. We should not be providing suspected terrorists with Miranda warnings and defense lawyers. Instead, the priority and focus must be on isolating and neutralizing the immediate threat and collecting intelligence to prevent another attack.

In closing, let me say that I hope that Congress and the Administration support this legislation as part of a comprehensive solution for detaining, interrogating and prosecuting suspected enemy belligerents. However, there is a lot more work that must be done. I am continuing to work with Senator Graham, Senator Lieberman, and others to address other crucial aspects of detainee policy.

As part of that effort, I believe we must establish a system for long-term detention of terrorists who are too dangerous to release, but who cannot be tried in a civilian court. While the law of war authorizes detention until the end of hostilities–something the Supreme Court has recognized and which is reinforced in this bill–I believe that a review system for the long-term detention of detainees should be set out in law. Additionally, both the United States District Court for the District of Columbia and the D.C. Circuit Court have urged Congress to provide uniform guidelines to apply in the habeas corpus cases that have been brought by detainees. Currently, the outcomes in the Guantanamo detainee habeas cases are inconsistent because of different interpretations of novel questions of law the judges face in applying habeas to wartime prisoners for the first time in our history. I will continue to work on a bipartisan basis to improve this process to obtain better, more uniform results. I do not believe that we will have addressed all the necessary detainee policy challenges until we do so, and my efforts will not stop until we have addressed all the detainee issues in a comprehensive fashion.

While other detainee policy challenges remain, I believe the handling of the Christmas Day bomber – including the law enforcement focus and the decision to read a Miranda warning after only 50 minutes of interrogation– demand that Congress and the Administration first address the issue which is most crucial to our national security. For that reason, we must have a clear policy, legal foundation, and mechanism for the detention, interrogation and trial of enemy belligerents who are suspected of engaging in hostilities against the United States. I hope my colleagues will join me in supporting this important legislation.

S. 3081
The Atlantic: A Detention Bill You Ought to Read More Carefully
Campaign for Liberty: McCain and Lieberman’s “Enemy Belligerent” Act Could Set U.S. on Path to Military Dictatorship
Mother Jones: The Enemy Belligerent Act of 2010

This entry was posted in Bill of Rights, Congress, Constitution, First Amendment, From the 51st State, Second Amendment, State of the Union, Tenth Amendment and tagged , , , , , , , , , , . Bookmark the permalink.

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