The dysfunctional state of the nation's detention policy was presented in high relief last week during the U.S. Senate testimony of Navy Vice Adm. William McRaven, the top military official involved in the raid that resulted in the death of Osama bin Laden.
Asked what the military would do if it captured a terrorism suspect outside a recognized war zone such as Afghanistan, the admiral said that "in many cases, we will put them on a naval vessel and hold them until we can either get a case to prosecute them in a U.S. court" or return them to a third country.
"What if you can't do either of those?" asked Sen. Lindsey Graham (R., S.C.).
"Then we'll release that individual and that becomes the unenviable option, but it is an option," the admiral responded.
He noted that the U.S. naval base at Guantanamo Bay, Cuba, remains off-limits for new detainees and that transferring a suspect to Bagram Air Base is politically problematic without permission from the Afghan government.
The situation becomes even more complicated if the suspect falls outside the authorization for use of military force, which gives the president the power to detain members of al-Qaeda, the Taliban, or affiliated forces responsible for the Sept. 11, 2001, attacks. If the suspect is a lone wolf or with a group that has no links to al-Qaeda, the United States may have little or no authority to hold him.
The absence of a well-thought-out detention scheme places the military in an untenable position. It builds in perverse incentives to kill, not capture, suspects.
The situation cries out for creation of a national-security court to handle rare cases where there is reliable intelligence pointing to the danger of a terrorism suspect, but not enough admissible evidence to prosecute him in a court of law.
Such a court would allow detainees to present their side of the story, empower federal judges to order the release of a suspect, and include a separate trial scheme to allow for prosecution if and when enough evidence is amassed.
Congress has not yet moved on legislation creating such a court. But it has recently addressed concerns affecting detainees already in custody, or those affiliated with al-Qaeda and the Taliban who may be picked up in Afghanistan.
A Senate version of such a bill makes important improvements over the House legislation, including the authority to prosecute detainees in federal court. It also would put into law the approach laid out by President Obama in an executive order: to provide for periodic review for those held at Guantanamo and include the right to counsel.
Those captured in Afghanistan would be entitled to military counsel and have their detentions reviewed by a military judge. Still, even the Senate version unduly and unjustifiably ties the President's hands on a range of issues.
The reconciliation of the House and Senate bills should do away with transfer restrictions that make it all but impossible for the President to send to third countries detainees cleared for release.
It should allow the executive to exercise its judgment on whether a detainee should be tried in federal court or by a military commission, or whether he must be held without trial subject to periodic review with the help of a lawyer. It should -- as the House did -- include a new authorization for the use of military force that empowers the president to continue to detain and prosecute future captives.
The White House has long resisted the prospect of enshrining detention policy in law. Although the shape of the final bill is not yet known, passage of some legislation is likely. The White House should finally and fully engage, to ensure that it protects the president's prerogatives and respects the rule of law.
-- Washington Post