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Proposed McKeon and McCain legislation won’t make us safer

Published in: The Hill

If there is one thing the operation against Osama bin Laden has shown, it is that the Obama administration does not feel it needs more authority to capture, detain or even kill certain terrorism suspects. Yet, while members of Congress applaud President Obama's action, legislative proposals greatly expanding this authority are quietly making their way through Congress.

One bill, introduced by Rep. Buck McKeon (R-Calif.), is set to be considered this week by the House Armed Services Committee during mark-up of the National Defense Authorization Act. Another, introduced by Sen. John McCain (R-Ariz.), is set to be marked up in the Senate in June. Both bills would expand who the US says it is at war with and mandate military detention for broadly defined terrorist suspects based on scant evidence.

Lawmakers behind the proposals claim they are necessary to prevent dangerous terrorists, including detainees released from Guantanamo, from attacking the US. Citing an exaggerated "return to the fight" rate for former Guantanamo detainees, legislators may be trying to score political points for sounding "tough on terror." But the military has not asked for more authority and the administration says it doesn't need it. The armed forces can already detain people captured on the battlefield and law enforcement agencies can arrest and detain anyone suspected of committing or conspiring to commit acts of terrorism.

In fact, by mandating military handling of virtually all major terrorism cases, the proposals block use of counterterrorism strategies proven most effective. Since 9/11, federal investigators, intelligence agencies and courts have resolved 479 terrorism-related cases, with 404 people convicted through trial or plea bargain, according to the NYU Center on Law and Security. The military system in Guantanamo by comparison has resolved exactly six cases - two convicted after trial and four by plea bargain.

With slightly different language, both bills expand the definition of who can be detained to include anyone accused of "substantially supporting" members of al Qaeda, the Taliban and other "associated" or "affiliated" forces even if captured inside the US. "Substantially supporting" is not defined but as US District Judge Joyce Hens Green, analyzing similar language in a federal court case noted, "even a little old lady in Switzerland" who gave money to certain Islamic charities may be deemed materially supporting a terrorist group.

Both bills mandate initial military detention unless the Secretary of Defense provides a waiver. The only way out, other than a years-long habeas corpus challenge, is trial by military commission or "administrative" review whereby a military panel decides, under very low standards of proof, whether the person continues to pose a threat. If so, they could be held indefinitely until vaguely defined "hostilities" end. McCain's bill allows for federal court trials if appropriations are available, but Congress has imposed restrictions on these funds.

In the military system there is no right to a speedy trial so detainees can languish for years. Trials admit hearsay and coerced evidence, and access to lawyers and evidence is severely restricted. Under "administrative" review, procedural protections are even more limited. McKeon's bill would prevent detainees from having lawyers. Instead they would get "personal representatives" who might not even be entitled to more than a mere summary of the evidence.

Current detainees found to pose no threat could still be held if even one former detainee from the same country was alleged to have taken part in any terrorist acts. Current and future detainees could also be held for various other reasons such as if their home country were deemed unstable or incapable of tracking them upon return. Detention on this basis, instead of individual culpability, violates both domestic and international norms and is counter to US values.

In support, legislators repeatedly cited an alleged 25 percent "recidivist" rate for former Guantanamo detainees. The figure is false and misleading in that roughly half of it includes those merely suspected of illicit activity. It has been soundly criticized by academics at Seton Hall University and the New America Foundation who suggest the figure is more likely around seven percent, notably lower than the 67 percent U.S. recidivism rate for convicted criminals.

Clearly some former detainees have engaged in hostile acts but continuing to detain others with absolutely no connection to them is as unjustified as it is unlawful. It is also bad policy as it enflames resentment and hostility towards the U.S. in detainee home countries. Legislators citing these figures know this yet they continue to use them.

Terrorism is, of course, terrifying. But the proposed legislation, motivated by fear and politics, is terrifying in a different way. It would make the U.S. less safe by taking terrorism cases out of a civilian system where they are currently being handled swiftly and efficiently. It would also codify permanently into US law indefinite detention without trial or meaningful opportunity to challenge confinement. These policies are not necessary or consistent with US values and violate US obligations under international law. That they are based in part on exaggerated - even false - "facts" is even more troubling.

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