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October 17, 2017

Successful Terrorism Detention and Trial Policy Respects Rights

Recent reports of the capture of an American citizen who fought for ISIS in Syria, a string of successful and high-profile terrorism trials in U.S. federal courts, and the continuing dysfunction of the Guantanamo Bay military commissions have reignited the debate over what is the best policy for detaining and prosecuting terrorism suspects. Some in the Trump Administration are pushing to bring the American ISIS member to federal court, but President Donald Trump and Attorney General Jeff Sessions’ stated policy preference for terrorism cases has been to send the suspects to Gitmo for interrogation, trial, and detention. But the better—and more successful—route is a detention, interrogation, and trial policy for terrorism suspects that respects the rule of law and human rights. 

As we detail in our new issue brief, the Trump Administration can and should codify a policy for handling terrorism suspects, whether arrested within the United States or captured abroad. This policy should include trial in U.S. federal court and detention in federal prison, as opposed to detention and trial at Guantanamo.

In cases when the United States decides to send suspects to partner nations for trial and imprisonment, it should only do so when it can be sure the suspect’s rights will not be violated. For suspects the United States holds, it should conduct lawful, humane interrogation of those suspects. And for those detainees still held at Guantanamo, the Trump Administration should continue to reassess the basis for their detention, and continue to transfer detainees cleared for release.

These recommendations are based on a successful track record of the U.S. federal court and prison systems for handling terrorism trials and detention, as well as expert testimony about what methods are most effective for prosecuting terrorism and gaining important intelligence.

Over the past several weeks, the United States has prosecuted multiple high-profile terrorism cases in federal courts, including convicting an al Qaeda member for his part in the bombing of a U.S. military base in Afghanistan and the Chelsea bomber. The alleged mastermind of the Benghazi attack is also currently standing trial in Washington, D.C. federal court.

Federal courts have convicted more than 620 individuals on terrorism-related charges since 9/11, including high-profile and complex cases involving suspects captured abroad. Trials go on without incident and without danger to the surrounding communities. Federal prisons hold hundreds of these individuals, and many other dangerous prisoners, without difficulty. Legal, humane, and effective interrogations continue to provide valuable intelligence and law enforcement has the tools to get information even after providing a Miranda warning and an attorney.

At Guantanamo, meanwhile, the legally questionable military commissions creak along. Last week, the civilian legal team for detainee Abd al-Rahim al-Nashiri, the accused mastermind of the USS Cole bombing, quit the trial entirely with the approval of Chief Defense Counsel Brigadier-General John Baker, citing their continued inability to communicate privately with their client. This has been a repeated issue in the commissions, with defense attorneys discovering that smoke detectors in client-attorney meeting rooms were bugged, and continual debate over who gets to review written materials before they are passed between detainee and attorney.

This is only one of the myriad legal and human rights issues with the military commissions and the Gitmo prison writ large, where the United States still holds 41 detainees, five of whom are cleared for release but stuck in prison. Guantanamo and the human rights violations committed there, as well as the indefinite detention of prisoners without charge or trial, continue to be symbol of the United States’ errors in its post-9/11 counterterrorism policy.

More importantly, especially for the Trump Administration, it is not entirely clear that holding ISIS members indefinitely at Guantanamo is even legal. If ISIS combatants are brought to Gitmo, it could set up a court battle that might invalidate the U.S. government’s purported legal footing for its war against the terrorist group.

None of this is necessary because, as noted above, the United States already has better tools available. Experience shows that terrorism detention, interrogation, and prosecution can be done safely, effectively, without violating human rights.