On the other hand, congressional Republicans’ alternative proposal — domestic detention in lieu of criminal prosecution — border on the Stalinist, erasing the line between the battlefield and civil society and taking counterterrorism policy to dark places even Bush never went.
The gross effect of the proposals on the table is that civil liberties — not just those of terror suspects, but of ordinary Americans as well — are pointed in an alarming direction. A sunlit public dialogue on this important issue is long overdue.
Some differences between Obama’s order and the bills offered by Rep. Buck McKeon (R‐Calif.) and Sen. John McCain (R‐Ariz.) are minor; the congressmen would empanel only military service members to review detention, while Obama would use a panel of military, diplomatic and intelligence representatives. And Congress should weigh in on the factors to consider for detention decisions, such as the likelihood that the detainee will take up arms again, or whether they have family or tribal ties that could promote rehabilitation.
Where the McKeon and McCain proposals go wrong is in mandating military detention for anyone who could arguably be considered an unprivileged belligerent (the category formerly known as “unlawful enemy combatant”). This would move routine domestic terrorism suspects to the military and require that the government treat them as it did Jose Padilla, detained without trial for an extended period of time.
Proponents of using military detention for domestic “combatants” claim that it is weakness to treat terrorists the same as petty thieves and armed robbers.
That’s great rhetoric, but the law of war is the law of necessity, meant to be applied when civil authorities are overwhelmed. If the civil rule of law handles terrorist threats adequately, then invoking military jurisdiction is a counterproductive overreaction.
That was the case with one of the handful of domestically detained enemy combatants, Ali al‐Marri. Al‐Marri was an honest‐to‐goodness Al Qaeda sleeper agent masquerading as an exchange student. The FBI indicted him on charges that could have carried a 115‐year maximum sentence. The government requested that the judge dismiss its charges with prejudice, meaning that they could not be levied again, and moved him to a naval brig.
The Supreme Court ultimately agreed to hear al-Marri’s case, but the government mooted the case when it removed al‐Marri from military custody and charged him with material support of terrorism. Al‐Marri pleaded guilty and received a sentence of eight years and four months.
Al-Marri’s case was a missed opportunity. The government should have put him away for life.
What’s worse is the fact that the McKeon proposal treats alien terrorists better than natural‐born citizens.
The McKeon bill bars a transfer from military detention back to the civilian courts, creating the possibility of a citizen plucked from the streets of America, barred from receiving a day in court, and prevented from ever returning. Citizen detainees, such as Jose Padilla, could be consigned to indefinite detention. This is ripe for constitutional challenge and a losing proposition for the government.
The McCain bill does not bar a transfer back to civilian court, but the practical effect may be the same. Mandating that routine terrorism cases go first to military detention means that questioning will happen without Miranda warnings, making it inadmissible in civilian court. A terror suspect moving back to civilian custody may lawyer up and not repeat his prior admissions, making prosecution more difficult. The incentive would be to keep him in military detention indefinitely.
Civilian investigators are trained to produce admissible evidence, and in a real emergency they can hold off on Miranda warnings under the doctrine’s built‐in public safety exception. This exception allows for questioning about the existence or location of guns, assault or kidnapping victims still in danger, accomplices and their identities, plans for future crimes, and what sets off a ticking time bomb. FBI policy is to maximize this doctrine, and sensibly so.
The threat of terrorism is no reason to abandon American traditions that keep the military out of day‐to‐day law enforcement. Our soldiers and investigators have demonstrated their capability to defeat Al Qaeda both on the battlefield and in the courtroom. We should let them do their jobs and not mix the two realms for the sake of political posturing.