IV. Reject the "Global War on Terror" as the Basis for Detaining Terrorist Suspects

In the immediate wake of the September 11 terrorist attacks, the Bush administration declared a "global war on terror," claiming that the legal framework that governs armed conflict allowed it to detain people as "enemy combatants" for an indefinite period without charge. People arrested distant from any conflict zone-in locations as far-flung as Bosnia, Thailand, and the US-Mexico border-have since been held for years at Guantanamo.

The Bush administration claimed that the "war on terror" even justified the indefinite detention without charge of terrorist suspects arrested within the United States. US citizen Jose Padilla, for example, was detained as an enemy combatant for more than three years before being transferred to civilian custody and convicted of conspiracy to commit terrorism. Ali Saleh Kahlah al-Marri, a Qatari citizen, was slated to be tried in 2003 for credit card fraud and making false statements to the FBI when President Bush suddenly transferred him from civilian to military custody. More than five years later, he is still being held without charge as an enemy combatant.

A growing number of counterterrorism, military, and law enforcement experts now believe that this approach to fighting terror not only disregards fundamental rights, but is counterproductive. A recent RAND Corporation study, for example, concluded that terrorists should be treated as criminals, not warriors. The study-a historical survey-urged the US to rely primarily on traditional policing and intelligence work to root out terrorism.[3]

Former federal officials-including former Judge Abner Mikva and former Attorney General Janet Reno-have also urged that terrorism cases be handled in the federal courts, explaining that the courts are fully able to handle such cases. In October 2008, Stella Rimington, the former director-general of Britain's equivalent to the CIA, endorsed this view, urging the next US president to reject the "war on terror" model and embrace a criminal justice approach to countering terrorism.

President Obama should:

(1)Reject "global war on terror" justifications for the indefinite detention of terrorist suspects. Apply a criminal justice approach, not inapplicable laws of war rules, to terrorist suspects apprehended outside of traditional armed conflict.

(2)Prosecute in federal court or release all detainees, including Ali Saleh Kahlah al-Marri, currently held as "enemy combatants."

(3)Embrace the traditional criminal justice system as the best and most effective means of prosecuting terrorist suspects.