The Detainee Shell Game
By Jack Goldsmith
WashPost
Sunday, May 31, 2009
The revelation last weekend that the United States is increasingly using foreign intelligence services to capture, interrogate and detain terrorist suspects points up an uncomfortable truth about the war against Islamist terrorists. Demands to raise legal standards for terrorist suspects in one arena often lead to compensating tactics in another arena that leave suspects (and, sometimes, innocent civilians) worse off.
The U.S. rendition program -- which involves capturing suspected terrorists and whisking them to another country, outside judicial process -- began in the 1990s. The government was under pressure to take terrorists off the streets and learn what they knew. But it could not bring them to the United States because U.S. law made it too hard to effectively interrogate and incapacitate them here. So instead it shipped them to Egypt and other places to achieve the same end.
A similar phenomenon has occurred with the U.S. detention of terrorist suspects at Guantanamo Bay. The Gitmo facility was established after the Sept. 11, 2001, attacks because the Bush administration believed it needed to apply a different detention and interrogation regime than would be allowed at home. Over the past eight years, courts have exported U.S. legal standards to the island, and now President Obama has promised to close the detention facility.
But closing Guantanamo or bringing American justice there does not end the problem of terrorist detention. It simply causes the government to address the problem in different ways. A little-noticed consequence of elevating standards at Guantanamo is that the government has sent very few terrorist suspects there in recent years. Instead, it holds more terrorists -- without charge or trial, without habeas rights, and with less public scrutiny -- at Bagram Air Base in Afghanistan. Or it renders them to countries where interrogation and incarceration standards are often even lower.
(More here.)
WashPost
Sunday, May 31, 2009
The revelation last weekend that the United States is increasingly using foreign intelligence services to capture, interrogate and detain terrorist suspects points up an uncomfortable truth about the war against Islamist terrorists. Demands to raise legal standards for terrorist suspects in one arena often lead to compensating tactics in another arena that leave suspects (and, sometimes, innocent civilians) worse off.
The U.S. rendition program -- which involves capturing suspected terrorists and whisking them to another country, outside judicial process -- began in the 1990s. The government was under pressure to take terrorists off the streets and learn what they knew. But it could not bring them to the United States because U.S. law made it too hard to effectively interrogate and incapacitate them here. So instead it shipped them to Egypt and other places to achieve the same end.
A similar phenomenon has occurred with the U.S. detention of terrorist suspects at Guantanamo Bay. The Gitmo facility was established after the Sept. 11, 2001, attacks because the Bush administration believed it needed to apply a different detention and interrogation regime than would be allowed at home. Over the past eight years, courts have exported U.S. legal standards to the island, and now President Obama has promised to close the detention facility.
But closing Guantanamo or bringing American justice there does not end the problem of terrorist detention. It simply causes the government to address the problem in different ways. A little-noticed consequence of elevating standards at Guantanamo is that the government has sent very few terrorist suspects there in recent years. Instead, it holds more terrorists -- without charge or trial, without habeas rights, and with less public scrutiny -- at Bagram Air Base in Afghanistan. Or it renders them to countries where interrogation and incarceration standards are often even lower.
(More here.)
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