A Never-Ending 'War on Terror'

By Ivan Eland
May 3, 2011

Editor’s Note: Many Americans hope the killing of al-Qaeda leader Osama bin Laden will permit the winding down of government excesses related to the “war on terror,” including a sensible process for adjudicating the scores of cases still pending against Guantanamo Bay detainees.

However, neoconservatives and other hardliners are pressing for even more draconian government powers aimed at accused “terrorists” and permitting the expansion of the global war against Islamic militants, as the Independent Institute’s Ivan Eland notes in this guest essay:

The WikiLeaks documents released on Guantanamo prisoners indicate appalling military incompetence in haphazardly patching together sketchy and contradictory information that has allowed many high-risk terror suspects to go free, while low-risk or innocent detainees continue to be incarcerated.

Yet some members of Congress would like to strengthen the military’s role in holding and trying such suspects and have the military completely take over the “war on terror.”

The documents indicate that in the case of many Guantanamo prisoners, the slapdash and fragmentary intelligence of their guilt was contradictory and would not have stood up in court or even under the lax evidentiary standards of kangaroo military tribunals. That’s why many of the prisoners are being detained indefinitely without any kind of trial.

Also, of the approximately 600 prisoners who have been released from the prison — either freed or placed into the custody of other countries — about 200 of them were designated “high risk” after their capture. Forty-two released prisoners resumed (or commenced) their terrorist or insurgent activities once they were released.

Given these poor results, you might suspect that politics, rather than risk, might be affecting prisoner releases. You would be right. Large numbers of detainees from Pakistan and Saudi Arabia were released, whereas even low-risk detainees from Yemen are still in the slammer, just because of “instability” in that country.

About 60 Yemeni prisoners have been cleared for repatriation, but they still languish in Guantanamo for geopolitical reasons.

So letting the military be the prosecutor, judge, jury and jailer for these prisoners has predictably made the process subject to incompetence and politics.

If the Guantanamo detainees were instead in the civilian justice system, some of both of these maladies would still exist, but the various functions would be less subject to abuse because of checks and balances than when they are consolidated under the executive branch alone. Also, reduced secrecy would allow fewer abuses and provide some accountability for results.

Unbelievably, given the incompetence and politics in the military’s anti-terrorism detention effort, those who adore the military want to expand its role in dispensing justice for terrorists and fighting them abroad. Sen. John McCain, R-Arizona, and Rep. Howard “Buck” McKeon, R-California, have introduced bills in the Senate and House, respectively, that would do just that.

According to a Human Rights First summary of both bills, they require taking the prosecution and handling of terror suspects out of the civilian courts. The bills require that terror suspects be held indefinitely without trial or be tried before military commissions, unless the secretary of defense grants a waiver.

This provision is flagrantly unconstitutional, because the Sixth Amendment to the Constitution requires a “speedy and public trial, by an impartial jury,” for “all criminal prosecutions.” The bill also dangerously violates the long-standing principle of posse comitatus, which helps safeguard the republic by keeping the military out of domestic law enforcement.

The bill subjects even U.S. citizens captured in the United States to military jurisdiction, requires the FBI and local law enforcement to turn terror suspects over to the military, and requires federal prosecutors to get the secretary of defense’s approval to pursue anti-terrorism cases in the United States.

Also, the bills prevent the transfer of detainees out of Guantanamo, even if the government itself has declared them innocent or not a threat and cleared them for transfer. This provision likely violates the Fifth Amendment’s command that no person be “deprived of life, liberty, or property, without due process of law.”

Finally, the bills allow the president to make war anywhere in the world against al-Qaeda, the Taliban, or “associated forces” without further congressional approval.

Furthermore, under the McKeon bill, the secretary of defense, without further congressional affirmation, can unilaterally decide to add new entities to the “associated forces” category. These provisions are also flagrantly unconstitutional, because they violate the requirement that Congress provide specific declarations of war and approvals for military actions.

Taking their lesson from European kings of yore, who dragged their countries into countless wars and foisted the costs in blood and treasure on their subjects, the U.S. Founders believed that unilateral executive war-making was dangerous to the republic and that the people’s branch of government — Congress — should pass judgment on all such actions.

The civilian courts and law-enforcement agencies have had a good record of prosecuting and jailing terrorists. In contrast, such antiterrorism activities are not the military’s strong suit, as its record shows. Yet posturing politicians, who want to be seen as tough on terrorists, are actually undermining anti-terror efforts by expanding the military’s role.