Opinion: Military courts-martial should replace failed Guantanamo policy

Thursday, January 15, 2009

Special to the Mercury News

Next week, the new president will formally inherit the nightmare of Guantánamo Bay. President-elect Barack Obama says he intends to shutter Guantánamo, and this decision is sound: The poorly thought-out prison and recent confirmation that torture took place there have called into question American adherence to the rule of law and discouraged our allies from cooperating with us.

Any post-Guantánamo system to detain enemy combatants must meet our national security needs, provide adequate due process to minimize the likelihood of error and be a pragmatic balance of these sometimes competing objectives.

When a suspected terrorist is captured on a foreign battlefield, the accepted laws of war allow the United States to detain that person until the end of the conflict. If the person is an unlawful (or unprivileged) combatant, they can be held for the duration of the war, and may be prosecuted for other crimes. Two determinations must then be made — whether the person is an unlawful enemy combatant, and whether the person has committed criminal offenses. The question confronting the new administration and Congress will be: Who should make these decisions, and how?

The Bush administration established tribunals to determine whether someone at Guantánamo was an unlawful enemy combatant, and military commissions to handle any prosecutions. This system has proved so flawed, and its due process so inadequate and discredited, it should be completely junked.

Some have advocated moving all detainees into the federal criminal courts or establishing a new national security court empowered to preventively detain terrorism suspects, but there is a better solution.

Military courts-martial have been in existence since the American Revolution and have a long history of dispensing justice without compromising military operations. Cases are tried before a panel of military judges using a set of due process protections provided for under the Uniform Code of Military Justice. Almost any wartime offense could be tried in a military court-martial, and their use would allow us to show the world we are giving detainees the same procedural protections we give our own service members.

The military courts-martial may not currently have jurisdiction to make initial determinations of whether someone is an unlawful combatant, but this can be easily changed by Congress. The district courts, currently entertaining hundreds of habeas petitions based on the flawed actions of the current tribunals, should stay their proceedings until the courts-martial have the opportunity to act and correct any errors. Upon their conclusion, all habeas petitions should be consolidated in a single district court.

Guantánamo detainees who no longer pose a threat or who are determined by the courts-martial not to be enemy combatants should be repatriated, provided we can be assured they will not be tortured. There also appears to be a new willingness among our European partners to resettle some of the detainees, an early dividend of the good will that awaits the new president. Detainees who are found to be unlawful combatants and to have committed additional crimes should be tried in the courts-martial, and if convicted, held in a military brig.

The most difficult cases — and probably the most numerous — are those involving detainees captured on the battlefields of Afghanistan who have been found to be unlawful combatants but against whom there is insufficient usable evidence to meet the high threshold to support a successful criminal prosecution. These detainees should be returned to Bagram and detained in a NATO-run facility until the cessation of hostilities or they are no longer deemed a threat. There is no reason the United States should bear the sole burden of detaining belligerents in that conflict. This is a task better handled by many nations working together.

Adam Schiff, D-Pasadena, represents the 29th District in the House of Representatives. Schiff is a member of the House Select Committee on Intelligence, the Judiciary Committee, and the Appropriations Committee. He wrote this article for the Mercury News.