As the armed conflict with various organized terrorist groups stretches into its sixteenth year, the United States continues to wrestle with the most effective way to handle captured terrorism suspects consistent with American values and the rule of law.
Having an effective, humane, and sustainable detention policy is becoming more important by the day, as the United States continues to fight al Qaeda and the Islamic State in Iraq and Syria (ISIS). This issue brief sets forth the elements of an effective detention and prosecution policy that respects human rights.
There are numerous national security dangers of detention and prosecution policies that fail to uphold human rights and the rule of law. Terrorist and insurgent groups routinely use American abuses to bolster their propaganda and recruitment. Human rights violations also alienate local populations and potential allies on the ground, resulting in unwillingness to aid the United States’ mission or encouraging local actors to actively work against the mission. Cooperation with allies is also complicated by policies that abuse human rights. Because these policies may run counter to the domestic laws of counterterrorism partner countries—as well as their international law obligations—the partners have been less willing and able to provide intelligence, grant extradition or other prisoner transfer requests, and otherwise aid in counterterrorism and other operations. With the prospect of continuing armed conflict, crafting a detention and prosecution policy that respects human rights is essential for successful counterterrorism.
The Trump Administration’s stated preference for handling terrorism suspects has been detention and trial at the U.S. military prison at Guantanamo Bay. The prison now holds 40 detainees. It also hosts the military commissions, where cases against seven detainees, including the alleged 9/11 conspirators, are in the pre-trial phase. Prominent national security officials across the political spectrum, however, have supported closing the prison and legal experts have opposed using the military commissions. It is also not clear whether detaining and trying ISIS members at Guantanamo is legal. The U.S. government has asserted that the 2001 Authorization for Use of Military Force (AUMF) covers the conflict against ISIS, but this claim has not been tested by the courts.
Meanwhile, U.S. federal courts have successfully prosecuted more than 660 terrorism suspects since 9/11. Of these, 113 were captured overseas, including al Qaeda spokesman and Osama bin Laden’s son-in-law Suleiman Abu Ghaith, who is currently serving a life-sentence in U.S. federal prison. Other individuals held in U.S. prisons include Zacarias Moussaoui, the 20th 9/11 hijacker, “shoe bomber” Richard Reid, and eight men involved in the 1998 bombings of U.S. embassies in Kenya and Tanzania.
Even if the Trump Administration decides not to close Guantanamo, it should use the U.S. federal court and prison systems, rather than military commissions, to try and detain new terrorism suspects, because they have proven to be a more efficient and effective policy option.