The legal, moral, and national security consequences of “prolonged detention”

Richard Klingler served in the Bush administration from 2005-2007, first in the Office of White House Counsel and then as General Counsel on the National Security staff. Yesterday, he testified before the Senate Committee on the Judiciary, Subcommittee on the Constitution. Klingler ably defended prior and ongoing detention powers and emphasized the continuity of current administration policy with that of the Bush administration. Here is what Klingler told th subcommittee:

Chairman Feingold, Ranking Member Coburn, and other members of the Subcommittee, thank you for allowing me to present my views today regarding the lawfulness, morality, and national security necessity of ongoing — or indefinite, or prolonged — detention. My written testimony elaborates these comments.

Detention, for this purpose, means detention by our military of enemy combatants: persons who our military concludes have waged or threaten war against our troops, citizens, and allies. The combatants at issue are members of al Qaeda and related terrorist organizations that pose a significant threat of violence to U.S. citizens.

The main purpose of detention is to keep those who would harm U.S. citizens and troops from returning to the fight – and detention appropriately continues until that threat no longer exists. In this sense, detention is always “indefinite” or “prolonged” until conflict ceases. We have fought long wars against unconventional forces. The conflict against terrorist organizations is not different in kind.

The debate over indefinite detention often wrongly focuses on Guantanamo Bay. “Prolonged” detention is not just something proposed for the future for a small subset of Guantanamo detainees. It is, instead, a practice that this Administration is already conducting on a widespread scale in Afghanistan and elsewhere, will continue to pursue for hundreds if not thousands of detainees for many years, and has already defended repeatedly in federal court.

Lawfulness. The lawfulness of ongoing detention of enemy combatants is clear and well-established. In short, such detention is a lawful incident of war, authorized whenever the exercise of war powers is proper. The Supreme Court has reached this conclusion for this specific conflict. The current Administration has correctly argued that “[l]ongstanding law-of-war principles recognize that the capture and detention of enemy forces are important incidents of war,” that our enemies are not confined to fixed battlefields in Iraq and Afghanistan, and that Congress has through the AUMF authorized ongoing detention.

Challenges to the detention of enemy combatants, relying the criminal law or otherwise, usually depend on rejecting the premise that we are truly at war on very broad scale. That conclusion would surprise our troops in Afghanistan, Iraq, and elsewhere. It would particularly surprise our Commander-in-Chief. He recently confirmed that “[w]e are indeed at war with al Qaeda and its affiliates” and that because “al Qaeda terrorists and their affiliates are at war with the United States…those that we capture – like other prisoners or war – must be prevented from attacking us again.” Perhaps now that this Administration has endorsed ongoing detention, as it has with nearly every one of its predecessor’s once-controversial counter-terrorism policies, we can more readily accept the legitimacy of these practices.

National Security Consequences. The most important national security benefit of detaining enemy combatants is simple but essential: to meet our moral commitment to ensure that those detained do not directly or indirectly attack our troops or citizens, here or abroad. Continuing detention also ensures that our military and intelligence forces can and will continue to seek to detain additional combatants.

Other benefits become clear in light of the alternatives. If standards for detention are increased, or if detention were abandoned or restricted, at least three consequences would follow:

First, detention would be outsourced. U.S. officials would rely on foreign allies to capture, interrogate and detain enemy combatants, and recent reporting shows that this is already occurring. Detainees are less likely to be captured, more likely to be released prematurely, and less likely to be treated well. We should worry that the Administration may be failing to detain newly discovered al Qaeda members and supporters in certain circumstances, but having other nations do so instead.

Second, mistaken release of detainees would occur more frequently. Even under the current standard, many detainees released by the U.S. have gone on to become al Qaeda and Taliban leaders, a suicide bomber, and combatants against our troops. This Administration’s Defense Department recently detailed the significant breadth of this problem. Even so, none of detainees released from Guantanamo has attacked citizens int eh United States – yet.

Third, detention would be sidestepped. Enemy combatants may be left in the field because criminal standards of proof have not been satisfied, placing our troops and citizens at risk. This was the principal flaw in our pre-9/11 counter-terrorism policy. Or, the military may choose instead to use the force of arms against the combatant when capture may prove pointless or risky.

Some suggest that we can avoid these tough choices by relying exclusively on criminal proceedings. The President has largely mooted that argument by stating that “[w]e’re going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country.” Even so, he concludes that there will still be detainees who cannot be prosecuted, “who, in effect, remain at war with the United States.”

The President is clearly right, all the more so for detainees in Afghanistan. Just because we can prosecute some terrorists in federal court does not mean that we can prosecute all who would attack our troops and citizens. And, we do not want to blur the line between the legal protections afforded to U.S. citizens and lawful permanent residents, on the one hand, and those suitable for foreigners abroad who the military has concluded would do us harm.

We should resist the return to pre-9/11 practice that exclusive reliance on criminal proceedings would reflect. We do not want to leave terrorists in the field, or send them there, simply because U.S. forces have not gathered evidence of past wrongdoing, admissible in court and provable “beyond a reasonable doubt.” We want them off the battlefield sooner, and to stay off longer. As the President says, we need “tools. . .to allow us to prevent attacks.”

Thank you.

UPDATE: Here is an account from the Washington Independent of Klingler’s full written testimony to the subcommittee. The Independent observes, in an understatement, that this “was clearly not what Sen. Russ Feingold (D-Wis.) hoped to establish by holding [the] hearing.”


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