NEW YORK , Jan. 22 /PRNewswire-USNewswire/ -- Barack Obama has just signed an executive order to close the detention facility at Guantanamo Bay , but many controversies remain over how to proceed, how long that process should take, and what should happen to current and future detainees. In a new policy brief from The Century Foundation, Guantanamo and Beyond: What to Do about Detentions, Trials, and the "Global War" Paradigm, Stephen J. Schulhofer , the Robert B. McKay Professor of Law at
This approach means restoring the domestic and international principles traditionally applicable to armed conflict: preserving law-of-war powers in regard to ordinary combatants, but reinstating and fully respecting the essential distinction between combatants and civilians. Schulhofer writes that pre- September 11 principles do not preclude reliance on our military, but they require recognition that military deployments are often justified where the legal framework of warfare is not. For instance, the United States has long used military personnel to deliver earthquake relief and to apprehend fugitives from civilian justice, as in the seizure of the terrorists responsible for hijacking the Achille Lauro.
In the report, Schulhofer addresses the frequently voiced concerns that international terrorism makes civilian conceptions of due process impractical -- concerns that he says are based on myth, misinformation, and exaggeration. He states that the nation's law-enforcement and judicial institutions possess ample resources to cope with modern terrorism. He notes that federal courts are not bound by geographical limits and, in fact, have jurisdiction over worldwide terrorist activity and over defendants captured abroad, even when forcible abduction is used to bring them here. Contrary to the mythology, Miranda warnings are not required on the battlefield or when public safety concerns prompt the questioning, and the rules for authentication of evidence are flexible; they have never posed a barrier to prosecution in a terrorism case. Similarly, the rule against using hearsay is subject to a host of exceptions; many out-of-court statements are routinely admitted in criminal trials. Classified evidence never has to be presented in open court, and for decades, the Classified Information Procedures Act has successfully protected sensitive information while providing redacted summaries sufficient to meet legitimate defense needs.
Schulhofer concludes that an approach that turned back the clock to pre- September 11 execution of the law would solve the conundrums of Guantanamo and the broader "global war" quickly, economically, and effectively, with tools of well-established legitimacy. He adds that restoring that framework quickly has broad strategic importance, because the United States cannot maintain a credible commitment to due process values if it simultaneously claims the right to invoke the prerogatives of warfare against shadowy enemies who live among civilians throughout the world.
Stephen J. Schulhofer is the author of Rethinking the Patriot Act: Keeping America Safe and Free (The Century Foundation Press, 2005) and The Enemy Within: Intelligence Gathering, Law Enforcement and Civil Liberties in the Wake of September 11 (The Century Foundation Press, 2002). He is available for interviews on this topic and others related to national security and civil liberties.