Panic Legislation: The Wrong Response

JURIST Guest Columnist Amos Guiora of the University of Utah College of Law says that the McCain-Lieberman military detention bill recently introduced in the Senate is yet another unfortunate instance of US national security legislation being driven by panic instead of principle.....



The "Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010," introduced last Thursday by Senator John McCain and Senator Joseph Lieberman, is but the latest example of panic-based legislation. As the debate over where to try terrorists intensifies in the wake of the attempted Detroit airplane bombing and the Obama Administration's announcement that it is going to reconsider its decision to try those responsible for 9/11 in federal court, it is clear that panic is once more driving policy.

The proposed bill mandates that any person detained on suspicion of terrorist acts or material support for terrorism be placed in military custody. The detainee will not be entitled to Miranda rights and will remain in detention — and can be interrogated — while the Executive Branch makes a status determination. If determined to be an unprivileged enemy belligerent, the detainee will be held until the end of hostilities. Needless to say, unlike the POW in the war paradigm, for detainees, end of hostilities in the terrorism paradigm is a euphemism for 'indefinite detention'.

The legislation's panic response can be seen not only in the due process and rights denied, but in the categories of persons it addresses. By encompassing those suspected of material support for terrorism — a federal crime indeed but never part of the law of war — the bill subjects an extraordinarily broad group of persons to indefinite detention.

The proposed legislation's impact would be a fundamental miscarriage of justice created by the unconstitutional denial of the right to counsel, the right to remain silent, the right to be free from arbitrary, let alone indefinite detention, and the right to a day in court.

Past practice in the US and abroad demonstrates, unfortunately, that panic and the desire to respond plays a dominant role over legitimate national security interests, respect for constitutional and international law considerations and careful analysis of the threat posed. That is, the response becomes what is important; its legitimacy and justification take a back seat. While terrorism poses a threat, that threat does not justify throwing our principles out the door in panic.

After the December 13, 2001 attack on the Indian parliament, the Prevention of Terrorism Act (POTA) created an overly broad definition of terrorism, and provided for detention of suspects for up to three months without charge. On September 17, 2004, the new elected Indian government of Prime Minister Manmohan Singh announced that it would honor its election pledge to repeal the POTA, which dispensed with the presumption of innocence, allowed the compulsory denial of bail, and enabled the admissibility of confessions despite the rampant use of torture and coercion by police and security forces.

In the aftermath of the Passover eve bombing in Netanya, Israel, considered one of the worst terrorist attack in the nation's history, Israel extended the time for detention of Palestinians suspected of involvement in terrorism to 18 days without judicial review. In striking down the law, the High Court of Justice made two key observations. First, the legislation was a classic example of a short-term response that did not address the long-term impact or issues of morality and legality. Second, democracies must adopt self-imposed restraints, recognizing that they must fight terrorism with "one arm behind their backs."

Republicans and Democrats alike have failed to articulate, create and implement a lawful interrogation, detention and trial regime for post-9/11 detainees. That is shameful and reflects negatively on two Presidents, the Congress and the Supreme Court.

The real issue runs deeper: how does American society define itself in the context of terrorism — by the rule of law or the rule of fear? The proposed McCain-Lieberman bill suggests a problematic stop-gap measure that significantly violates the rights of suspects. The examples from India and Israel highlight the danger of panic legislation, ultimately overturned.

Although we must address - and resolve — the trinity of detention, interrogation and trial, discarding core principles is not the way. I have proposed the establishment of national security court in conjunction with Miranda guarantees for detainees. A protectionless interrogation regime predicated on indefinite detention does not contribute to counterterrorism. All it does is reflect panic. That has not worked before — why should it work now?


Amos N. Guiora is Professor of Law at SJ Quinney College of Law, the University of Utah; his latest book is Freedom from Religion: Rights and National Security (Oxford University Press, 2009).
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