Detainee Madness
December 6, 2011

Last week the Senate conducted a heated debate on the future of our military-detainee policy. But the tragic thing about the detainee debate is the fact that there is one at all. In the past few years, Congress has been forced to enter the fray and use all political means necessary to prevent the civilianization of our detainee policy. Actions such as the release of Guantanamo detainees in foreign countries, the use of law-enforcement mechanisms like Miranda warnings before questioning terror detainees, and the trial of unlawful combatants in civilian courts in the U.S. are all part and parcel of a larger failure of detainee policy in the Obama administration.

The basic debate is clear. Our fight against Islamic terrorism has required us to capture jihadists waging (or seeking to wage) war against the United States in two active combat theaters, along with other locations around the world. When we capture a suspected or known terrorist, do we consider him a criminal suspect — subject to our domestic laws, and entitled to the same constitutional protections as an American citizen? Or is he an unlawful enemy combatant, a battlefield capture deserving the same rights and treatment as millions of wartime captures before him?

Upon taking office, President Obama and his administration registered their preference for the former, and sought a return to the way we treated terrorists captured during the Clinton administration — a time when our government operated under the pretext that acts of terrorism, including sworn acts of war resulting in death and destruction of U.S. forces and assets, were domestic in nature, and therefore deserving of criminal legal treatment. This adoption of a criminal-justice orientation displayed a stunning lack of forethought and a failure to fully contemplate the consequences of reversing the Bush administration’s policy of treating unlawful enemy combatants within a law-of-war model. Tellingly, under Obama, detainee policy was spearheaded not by the Defense Department, which is dedicated to protecting the nation from attacks, but by the Justice Department, which is responsible for ensuring the enforcement of domestic laws.

The Obama reversal was championed by Attorney General Eric Holder, whose insistence on bringing Guantanamo detainees to American soil for civilian legal trials drew broad condemnation from the American pubic. While the idea of a civilian trial for captured terrorists in New York City prompted understandable concerns, the more disturbing problem was Holder’s apparent lack of comprehension regarding the stakes of the decision to shift our capture posture away from the law-of-war model. In a hearing before the Senate Judiciary Committee on Nov. 18, 2009, Sen. Lindsey Graham, a colonel in the USAF Reserves, asked Holder two significant questions. First: “Can you give me a case in U.S. history where an enemy combatant caught on a battlefield was given a civilian trial?” Holder’s answer: “I would have to look at that.” Second: “If we captured Bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?” Holder responded, “That all depends.”

Under a war-capture model, persons captured on a battlefield and determined to be enemy combatants are held until the end of hostilities. During this time, intelligence-gathering interrogations are permitted. Miranda rights, which were judicially created by the Supreme Court in 1966, have no application in this war context. The primary job of a soldier is to defeat the enemy, not collect evidence and give warnings. Forcing U.S. service members to perform CSI-style evidence collection in the middle of a war zone would hinder the mission and needlessly expose them to additional danger.

Law-enforcement-theory apologists typically assert that, because we are the United States, we must give traditional criminal due process and a fair jury trial to everyone, including terrorists who flout the laws of war. Of course, it also follows under this view that terror detainees deserve Miranda rights and the right to an attorney. Such an approach would have been unintelligible to the Founding Fathers, yet the emotional plea regarding the potential innocence of these captures is powerful because it makes regular citizens incorrectly fear that they could be captured and held as terrorists.

Proponents of a law-enforcement model worry that a terror suspect might be falsely accused — a fear that, besides being exaggerated, could easily harm our security. After all, if a detainee is picked up during a firefight in the tribal regions of Pakistan, it is unlikely that the detention will be accompanied by a lot of physical evidence. Whether a detainee can be proven “guilty” or not (the primary concern in a law-enforcement context) is a much different question from those that arise under a law-of-war, such as whether the detainee represents a threat to U.S. citizens and whether the detainee can provide actionable intelligence.

In a criminal context, we set a high standard for the evidence required to deprive someone of liberty, erring on the side of releasing people who are guilty of crimes rather than imprisoning people who are innocent. The calculation is different with respect to terrorist detainees. This is because the decision to release an enemy combatant carries with it enormous consequences. If a military commander releases a detainee who then returns to the battlefield — perhaps setting an IED that kills four Marines and wounds two others — then the commander is responsible for his decision, and the deaths will haunt him forever. Yet the political pressure to release detainees continues.

Needless to say, this pressure is not coming from our military and is most certainly not how commanders want to wage war in foreign countries. There is nothing clean or easy about this decision. There is no self-righteous moral high ground to rest on comfortably. Commanders struggle with these decisions, but they generally side with the protection of our troops, our nation’s most treasured assets. We should expect our elected representatives to do the same. And it is these elected leaders, not unaccountable judges with no competence in military or national security matters, who should set detainee policy.

A December 2010 report by James Clapper, the director of national intelligence, observed that 25 percent of detainees released from Guantanamo Bay had returned to the battlefield. Ten months later, Clapper testified before a joint hearing of the Senate and House Intelligence Committees that the number of these confirmed or suspected recidivists was 161, a rise to 27 percent. That’s 161 terrorists we had in our possession who are now back in the world, plotting every day — likely with more vigor than before — to inflict serious danger on the United States, her people, and her interests.

Congress is working for the people and doing what polls show the people want. Congress has legislatively blocked the moving of detainees to the U.S. for civilian trials. Now it is trying to codify the laws of wartime detainee capture, as they are already understood, in the McCain-Levin amendment. Congress appears likely to do the right thing, but the fact that this is necessary at all shows how badly we have lost our way.

In view of the high rate of recidivism, the path forward is undeniably clear: We must discard the criminal-law model and recognize the traditional distinction between those who violate domestic law and those who seek to destroy the nation. By so doing, we can fashion a detainee policy that protects our people and eschews political correctness. This approach will halt the growing civilianization of battlefield captures and render civilian trials of unlawful combatants a thing of the past. Military operations are too important to be subordinated to misguided policy experimentation. We are at war with a vicious enemy, and treating it like one is a time-honored and effective approach to the capture and detention of those who seek to destroy us.

— Adam P. Laxalt is veteran of Operation Iraqi Freedom, where he served in Task Force-134 (Detainee Operations). Ron DeSantis is a veteran of Operation Iraqi Freedom, served at the terrorist detention facility at Guantanamo Bay, and is the author of Dreams From Our Founding Fathers: First Principles in the Age of Obama.