Prolonged Detention Hurts America's Efforts to Defeat Terrorists

In testimony
stating that a new prolonged detention system highly vulnerable to
constitutional attack is not a durable solution to problems stemming
from current Guantanamo detention policies, Human Rights First (HRF)
Chief Executive Officer Elisa Massimino today urged lawmakers to rely
on proven existing laws that ensure national security instead of
turning to reckless new procedures that could set a dangerous legal
precedent without solving the problem of Guantanamo.

"The use of arbitrary and unlimited detention by the Bush
Administration has done considerable damage to America's efforts to
defeat terrorists because it has served as a powerfully effective
recruiting advertisement for al-Qaida and others. It has strengthened
the hand of terrorists - rather than isolating and delegitimizing them
- in the political struggle for hearts and minds," Massimino told
members of the Senate Judiciary Committee's Subcommittee on the
Constitution, Civil Rights and Property Rights during its hearing
examining the consequences of prolonged detention. "It has undermined
critical cooperation with our allies on intelligence and detention. It
has done considerable damage to the reputation of the United States,
undermining its ability to lead other countries and international
opinion."

Massimino testified that any attempt to revise the United States'
failed military commissions and continue to detain Guantanamo prisoners
without trial would be counterproductive and undermine the Obama
Administration's efforts to "enlist the power of our fundamental
values." She noted that the United States made a grave error when it
chose to label all Guantanamo prisoners as "combatants" engaged in a
"war on terror," a designation that resulted in prolonged detention and
ceded an important advantage to al Qaeda because it supported their
claim to be "warriors" engaged in a worldwide struggle against the
United States and its allies rather than the criminals they truly are.

Pointing to a New York Times opinion piece by General
Wesley Clark that was later cited approvingly in a legal brief by 19
other former national security and counterterrorism officials,
Massimino reminded the committee that many military and intelligence
experts share this view. General Clark noted in his piece that, "By
treating such terrorists as combatants ... we accord them a mark of
respect and dignify their acts. And we undercut our own efforts
against them in the process.... If we are to defeat terrorists across the
globe, we must do everything possible to deny legitimacy to their aims
and means, and gain legitimacy for ourselves.... [T]he more
appropriate designation for terrorists is not "unlawful combatant' but
the one long used by the United States: 'criminal.'"

HRF has long
advocated the use of existing U.S. criminal justice laws and courts to
ensure accuracy of judicial outcomes in detainee cases. Any detention
system that deviates from these proven mechanisms reduces that
accuracy, particularly if decision makers resort to racial profiling
and stereotypes or are allowed to consider the use of secret,
classified or coerced evidence. Massimino warned that any prolonged
detention system that fails to meet constitutional muster will
ultimately lead to errors that "fuel resentment and criticism of the
system." Referring to the HRF report In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts,
she reminded the committee that for years the government has been able
to effectively and lawfully detain and prosecute many suspected
terrorists under provisions of criminal, immigration and other laws.
She also noted that adding additional procedural protections in a newly
created system, including the right to an attorney and the right to
judicial review, would still fall far short of the accuracy safeguards
provided by the nation's existing criminal justice system.

Massimino concluded, "There has not yet been a full public
accounting of the strategic and operational costs of the failed Bush
administration policies on Guantanamo and detention. But there is
plenty of evidence to suggest that continuing down the road to
prolonged detention without trial will continue to undermine our
security. It will also continue to impede the Obama Administration's
efforts to turn the page on the past and successfully implement a new
strategy to combat terrorism that brings the United States and its
allies together in pursuit of a common goal. We hope that the Congress
will encourage the administration to reject this path, and prevent the
entrenchment of an entirely new system of detention in the federal law
and on American soil."

To read her testimony visit: https://www.humanrightsfirst.org/pdf/090609-ETN-elisa-testimony-detention.pdf

To read In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, visit https://www.humanrightsfirst.info/pdf/080521-USLS-pursuit-justice.pdf.