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Michael S. Greco

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The Congress Is Wrong on This One

Posted: 12/15/11 11:30 AM ET

This week the Congress is moving to take the unprecedented step of restricting the president's authority to detain terrorist suspects during ongoing counterterrorism operations. The conference report on the FY12 defense authorization bill would require the president to detain certain alleged terrorists in military custody, restrict his ability to transfer them to the United States to stand trial, and authorize the indefinite detention without trial of alleged terrorists, including potentially Americans.

These provisions are irrational, counterproductive and violate historical American values. After originally indicating that he would veto the bill, the president has now said that he will sign it. His doing so would undermine the rule of law in an era when popular struggles to secure a just rule of law elsewhere should be reinforced by our example.

The president has said that he already has the authority he needs to detain members of al-Qaeda, and federal courts have upheld this authority. It makes no sense for Congress to inject new restrictions on the president's authority. The restrictions likely violate the Constitution; will be the subject of extensive litigation if enacted; and would complicate U.S. terrorism detention operations for years to come.

We have struggled for nearly a decade to establish an effective military detention regime for terrorists. In contrast, the civilian court system has successfully prosecuted over 400 terrorists. Federal courts have well established procedures for protecting classified evidence and no prisoner has ever escaped from a federal maximum security prison.

Trials in civilian courts pose no unique security risks. Even if every trial were held in Guantanamo, there is still a danger that terrorists will attempt attacks on American soil in protest. This issue will have to be addressed regardless of whether trials are held in federal courts or military commissions. In short, there is no rational reason to mandate that a suspect must be detained in a military facility.

Unlike the broad jurisdiction of federal courts, military commissions can only try individuals for a narrow class of crimes. If these provisions are enacted, the president would have to detain certain suspects in military custody, even if potential charges against the suspect are triable only in federal criminal courts and not military commissions. This could greatly impede the president's ability to safeguard our country.

Some argue that Congress should codify the detention authorities the president is already using. While this may be desirable, it only makes sense if the Congress enacts a law consistent with fundamental constitutional rights. These provisions are not.

For example, they authorize (after only a brief hearing before a military panel) the indefinite detention without trial of an alleged terrorist who has never engaged in any form of hostilities and was captured far from any battlefield. Such authority clearly violates the right to freedom we hold most dear and extends far beyond any legitimate counterterrorism need.

These provisions are so inconsistent with fundamental national security imperatives that they raise troubling questions about the ideological rigidity of their authors. Why do the proponents of these provisions insist on treating terrorists like warriors warranting military custody? They do not deserve the honor.

No one questions that the U.S. military plays an important role in fighting terrorism but the Armed Forces do not want -- and are not equipped - also to serve as judge and jailor. In contrast, this is a responsibility well within the established competence of civilian authorities.

The Director of the FBI and the Director of National Intelligence both have expressed concern that these provisions could jeopardize their ability to interrogate terrorism suspects. A wide range of national security and legal experts have called for the removal of these provisions, including 26 retired admirals and generals and the American Bar Association.

Throughout the world our federal courts are a shining example of American democracy and a just rule of law. They have proven to be fully capable of incapacitating terrorists in a fair and transparent manner. Congress, for what appear to be purely political reasons, should not take this powerful tool out of the president's arsenal at this critical time. Instead, the politics of fear should be put aside, the provisions should be stricken, and Congress should deal with terrorism in a practical manner that preserves and not erodes our freedom.

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Michael S. Greco, writing in his personal capacity, is a lawyer in Boston, Massachusetts.