Improving Detainee Policy: Handling Terrorism Detainees within the American Justice System

Thank you, Mr. Chairman and members of the committee, for inviting me to testify concerning what is probably the single most important unresolved legal policy challenge affecting America’s confrontation with international terrorism: The design of an appropriate regime for detaining alien terrorist suspects seized abroad.

I am a Fellow in Governance Studies and Research Director in Public Law at the Brookings Institution. I am the author of the book, Law and the Long War: The Future of Justice in the Age of Terror, which is forthcoming this month and from which this testimony is partly adapted. I have written extensively on the challenges to the legal system posed by the detention operations that became necessary after the September 11 attacks. I also serve on the Hoover Institution Task force on National Security and the Law. The views I am expressing here are my own.

It is difficult to overstate the scope and magnitude of our political system’s collective failure in detention operations to date. In the fall of 2001 and the winter of 2002, almost nobody doubted the proposition that in an international conflict involving a congressionally-authorized use of force and characterized by repeated military engagements, the United States is entitled to detain enemy forces. Yet today, doubt concerning the legitimacy of war-on-terrorism detentions is more the norm than the exception. The reason is simple, and it is not that the rationale for these detentions has grown less powerful. The current administration has refused to tailor the detention system contemplated by the laws of war to the unusual features of the current conflict—a set of circumstances that demand more nuanced fact-finding than does traditional warfare and consequently also demand greater procedural protections for detainees. Congress has declined to create a better system legislatively. And the courts have so far provided next to no guidance on the ground rules for detention, other than to emphasize the fact of their own habeas jurisdiction.

The result is a recipe for public and judicial suspicion: A system in which complex questions of fact get resolved in closed proceedings that produce a minimal administrative record based on information—some of it undoubtedly flawed—that detainees have had virtually no opportunity to rebut.

To read the full testimony, click here.