The trials of terror-suspect policy

The Obama administration has done the right thing by trying to close the detention facility at Guantanamo and establish a clear, justifiable legal framework to deal with captured terrorist suspects at home and abroad.

But with a possible reversal of the decision to try Khalid Sheikh Mohammed and his conspirators in a civilian court, the policy is now in a shambles. It is time to hit the reset button.

If these issues were easy, the bright people working in both the prior and current administrations would have solved them long ago. But they are not, and the highly charged, hyper-partisan environment in which we live makes it even more difficult to choose a policy option and implement it.

Still, the Obama team has embarrassed itself. On the first day in office, President Barack Obama announced the laudable goal of closing the facility in Cuba in a year, but no clear policy or political path to achieving this. No wonder the deadline has passed and there are more than 200 people still sitting in the Gitmo jail.

When the administration announced it planned to move detainees to U.S. soil, demagoguery took hold, and the media and public became convinced that shackled prisoners in super-max prisons would create a threat to public safety. This reaction, while lamentable, should have been predicted.

Then, the administration sent mixed signals by deciding the military commissions that Obama criticized during the campaign should be retained (with improvements) and used for some, but not all, of the detainees.

When Attorney General Eric Holder announced that Mohammed and four other detainees would be tried in Manhattan, even though Mohammed had pleaded guilty in an ongoing military commission, the public reacted negatively. Not only did people consider holding a trial in New York a safety risk, they could not justify spending an estimated $200 million on security at a time of high deficits and unemployment.

Eventually, the administration backed down from holding the trial in New York and now it appears to be reversing the decision to use the civilian courts at all. What a mess.

We need a policy that is clear, justifiable under the rule of law and easily understood by the American public. And, somehow, we need to take the politics out of this by getting some bipartisan support for it. Here are a couple of ideas:

Use the military commissions to try foreign terrorist suspects picked up on the battlefield. The Supreme Court has held that detainees captured on the battlefield can be treated as "enemy combatants" and tried for war crimes in military commissions. This makes sense because these individuals are more "warriors" then common criminals, and are not entitled to the same level of legal rights as those afforded to U.S. citizens in our civilian courts.

Use civilian courts to try terrorist suspects who are citizens. For the most part, this is the policy that has been pursued by the prior and current administrations. Most Americans would agree that citizens, no matter how heinous the charges against them, should get a trial before their peers in a civilian court. The Bush administration's efforts to detain three citizens as "enemy combatants," deprive them of legal representation and keep them in isolated cells in a military brig was a disgrace. One of them was deported and is now free in Saudi Arabia. The other two were transferred back to the criminal justice systems, convicted, and are serving lengthy prison terms.

Use the criminal justice system for foreign terrorist suspects arrested in the United States. This is a gray area, but it is how we dealt with shoe bomber Richard Reid, al-Qaida affiliate Zacharias Moussaoui and now underwear bomber Umar Farouk Abdulmutallab. Yes, these individuals are part of a global insurgency against the U.S., but we should treat them as common criminals, and not heighten their status to glorious warriors (which is what they want). There is also no reason why we can't interrogate these individuals for intelligence purposes before turning them over to the criminal justice system.

Transfer any remaining detainees to U.S. facilities across the country. Let's try to diffuse the "not-in-my-backyard" issue by dispersing any remaining Gitmo detainees to maximum security facilities around the country. Perhaps political leaders can muster the courage to tell their constituents that we are holding far more dangerous people in these facilities already and that terrorists are more likely to attack soft targets like bus stations than prisons.

David Schanzer is director of the Triangle Center on Terrorism and Homeland Security at Duke University and UNC-Chapel Hill.  This op-ed was first published in The (Raleigh) News & Observer.