Detention Policies Guided by Rule of Law

Detention Policies Guided by Rule of Law in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): In his remarks at Harvard Law School, discussed in A.1.a.(2)(ii) supra, Assistant to the President John O. Brennan discussed how the rule of law has guided the Obama administration's policies on detention, interrogation, and prosecution of suspected participants in al-Qaida's campaign against the United States. Mr. Brennan's remarks on that issue appear below; the full text of his remarks is available at (internet link) whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our-values-an.

Detention and interrogation We've worked to uphold the U.S. values and the rule of law in a[nother] area—the question of how to deal with terrorist suspects, including the significant challenge of how to handle suspected terrorists who were already in the U.S. custody when this Administration took office. There are few places where the intersection of the U.S. counterterrorism efforts, the U.S. laws, and the U.S. values come together as starkly as it does at the prison at Guantánamo. By the time President Obama took office, Guantánamo was viewed internationally as a symbol of a counterterrorism approach that flouted the U.S. laws and strayed from the U.S. values, undercutting the perceived legitimacy—and therefore the effectiveness—of the U.S. efforts.

Aside from the false promises of enhanced security, the purported legality of depriving detainees of their rights was soundly and repeatedly rejected by the U.S. courts. It came as no surprise, then, that before 2009 few counterterrorism proposals generated as much bipartisan support as those to close Guantánamo. It was widely recognized that the costs associated with Guantánamo ran high, and the promised benefits never materialized.

That was why…on one of his first days in office, President Obama issued the executive order to close the prison at Guantánamo. Yet, almost immediately, political support for closure waned. Over the last two years Congress has placed unprecedented restrictions on the discretion of the U.S. experienced counterterrorism professionals to prosecute and transfer individuals held at the prison. These restrictions prevent these professionals—who have carefully studied all of the available information in a particular situation—from exercising their best judgment as to what the most appropriate disposition is for each individual held there.

The Obama Administration has made its views on this clear. The prison at Guantánamo Bay undermines the U.S. national security, and the U.S. nation will be more secure the day when that prison is finally and responsibly closed. For all of the reasons mentioned above, we will not send more individuals to the prison at Guantánamo. And we continue to urge Congress to repeal these restrictions and allow the U.S. experienced counterterrorism professionals to have the flexibility they need to make individualized, informed decisions about where to bring terrorists to justice and when and where to transfer those whom it is no longer in the U.S. interest to detain.

This Administration also undertook an unprecedented review of the U.S. detention and interrogation practices and their evolution since 2001, and we have confronted squarely the question of how we will deal with those we arrest or capture in the future, including those we take custody of overseas. Nevertheless, some have suggested that we do not have a detention policy; that we prefer to kill suspected terrorists, rather than capture them. This is absurd, and I want to take this opportunity to set the record straight.

As a former career intelligence professional, I have a profound appreciation for the value of intelligence. Intelligence disrupts terrorist plots and thwarts attacks. Intelligence saves lives. And one of the U.S. greatest sources of intelligence about al-Qa'ida, its plans, and its intentions has been the members of its network who have been taken into custody by the United States and the U.S. partners overseas.

Developments

So I want to be very clear—whenever it is possible to capture a suspected terrorist, it is the unqualified preference of the Administration to take custody of that individual so we can obtain information that is vital to the safety and security of the American people. This is how the U.S. soldiers and counterterrorism professionals have been trained. It is reflected in the U.S. rules of engagement. And it is the clear and unambiguous policy of this Administration.

Some have argued that the United States should simply hold suspected terrorists in law of war detention indefinitely. It is worth remembering, however, that, for a variety of reasons, reliance upon military detention for individuals apprehended outside of Afghanistan and Iraq actually began to decline precipitously years before the Obama Administration came into office.

In the years following the 9/11 attacks, the U.S. knowledge of the al-Qa'ida network increased and the U.S. tools with which to bring them to justice in federal courts or reformed military commissions were strengthened, thus reducing the need for long-term law of war detention. In fact, from 2006 to the end of 2008, when the previous administration apprehended terrorists overseas and outside of Iraq and Afghanistan, it brought more of those individuals to the United States to be prosecuted in the U.S. federal courts than it placed in long-term military detention at Guantánamo.

Article III courts & reformed military commissions When we succeed in capturing suspected terrorists who pose a threat to the American people, the U.S. other critical national security objective is to maintain a viable authority to keep those individuals behind bars. The strong preference of this Administration is to accomplish that through prosecution, either in an Article III court or a reformed military commission. the U.S. decisions on which system to use in a given case must be guided by the factual and legal complexities of each case, and relative strengths and weaknesses of each system. Otherwise, terrorists could be set free, intelligence lost, and lives put at risk.

That said, it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through the U.S. Article III courts. As they should be. the U.S. military does not patrol the U.S. streets or enforce the U.S. laws—nor should it.

This is not a radical idea, nor is the idea of prosecuting terrorists captured overseas in the U.S. Article III courts. Indeed, terrorists captured beyond the U.S. borders have been successfully prosecuted in the U.S. federal courts on many occasions. the U.S. federal courts are time-tested, have unquestioned legitimacy, and, at least for the foreseeable future, are capable of producing a more predictable and sustainable result than military commissions. The previous administration, successfully prosecuted hundreds of suspected terrorists in the U.S. federal courts, gathering valuable intelligence from several of them that helped the U.S. counterterrorism professionals protect the American people. In fact, every single suspected terrorist taken into custody on American soil—before and after the September 11th attacks—has first been taken into custody by law enforcement.

Details

In the past two years alone, we have successfully interrogated several terrorism suspects who were taken into law enforcement custody and prosecuted, including Faisal Shahzad, Najibullah Zazi, David Headley, and many others. In fact, faced with the firm but fair hand of the American justice system, some of the most hardened terrorists have agreed to cooperate with the FBI, providing valuable information about al-Qa'ida's network, safe houses, recruitment methods, and even their plots and plans. That is the outcome that all Americans should not only want, but demand from their government.

Similarly, when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in the U.S. criminal justice system. There is bipartisan agreement that U.S. citizens should not be tried by military commission. Since 2001, two U.S. citizens were held in military custody, and after years of controversy and extensive litigation, one was released; the other was prosecuted in federal court. Even as the number of U.S. citizens arrested for terrorist-related activity has increased, the U.S. civilian courts have proven they are more than up to the job.

In short, the U.S. Article III courts are not only the U.S. single most effective tool for prosecuting, convicting, and sentencing suspected terrorists—they are a proven tool for gathering intelligence and preventing attacks. For these reasons, credible experts from across the political spectrum continue to demand that the U.S. Article III courts remain an unrestrained tool in the U.S. counterterrorism toolbox. And where the U.S. counterterrorism professionals believe prosecution in the U.S. federal courts would best protect the full range of U.S. security interests and the safety of the American people, we will not hesitate to use them. The alternative—a wholesale refusal to utilize the U.S. federal courts—would undermine the U.S. values and the U.S. security.

At the same time, reformed military commissions also have their place in the U.S. counterterrorism arsenal. Because of bipartisan efforts to ensure that military commissions provide all of the core protections that are necessary to ensure a fair trial, we have restored the credibility of that system and brought it into line with the U.S. principles and the U.S. values. Where the U.S. counterterrorism professionals believe trying a suspected terrorist in the U.S. reformed military commissions would best protect the full range of U.S. security interests and the safety of the American people, we will not hesitate to utilize them to try such individuals. In other words, rather than a rigid reliance on just one or the other, we will use both the U.S. federal courts and reformed military commissions as options for incapacitating terrorists.

As a result of recent reforms, there are indeed many similarities between the two systems, and at times, these reformed military commissions offer certain advantages. But important differences remain—differences that can determine whether a prosecution is more likely to succeed or fail.

For example, after Ahmed Warsame—a member of al-Shabaab with close ties to al-Qa'ida in the Arabian Peninsula—was captured this year by U.S. military personnel, the President's national security team unanimously agreed that the best option for prosecuting him was the U.S. federal courts, where, among other advantages, we could avoid significant risks associated with, and pursue additional charges not available in, a military commission. And, if convicted of certain charges, he faces a mandatory life sentence.

More about the Issue

In choosing between the U.S. federal courts and military commissions in any given case, this Administration will remain focused on one thing—the most effective way to keep that terrorist behind bars. The only way to do that is to let the U.S. experienced counterterrorism professionals determine, based on the facts and circumstances of each case, which system will best serve the U.S. national security interests.

In the end, the Obama Administration's approach to detention, interrogation and trial is simple. We have established a practical, flexible, results-driven approach that maximizes the U.S. intelligence collection and preserves the U.S. ability to prosecute dangerous individuals. Anything less—particularly a rigid, inflexible approach—would be disastrous. It would tie the hands of the U.S. counterterrorism professionals by eliminating tools and authorities that have been absolutely essential to their success.

Detention Policies Guided by Rule of Law

Detention Policies Guided by Rule of Law