Foster's Daily Democrat - Treating Terrorists Like Criminals Limits Our Security

Op-Ed

By Senator Kelly Ayotte

Obtaining valuable intelligence from terrorists to protect American lives in a manner that honors American laws and values guides my approach to terrorist detention policy. As I've worked with Senate Armed Services Committee Chairman Carl Levin (D-MI) and Ranking Member John McCain (R-AZ) to develop a bipartisan agreement that establishes a framework for how we detain and interrogate terrorists, I've been disappointed to see widespread mischaracterization of the legislative solution that Republicans and Democrats produced.

Contrary to the outrageously false assertions that have circulated, the detainee provisions approved overwhelmingly by Congress as part of the annual defense policy bill would not permit the military to arbitrarily detain American citizens. Claims that the legislation would allow the military to hold an American citizen indefinitely just because he or she speaks out against the government are simply untrue.

This bill only applies to a limited segment of individuals who are enemies of our country: members of al Qaeda, the Taliban, or an associated force who are participating in, or attempting to carry out, an attack on the United States or our allies. Unfortunately, throughout our nation's history, there have been instances in which American citizens have chosen to join our enemy.

The legislation Congress passed reaffirms the president's existing authority, in effect since at least World War II (when some American citizens joined the Nazis attempting to kill us on our soil) to authorize -- but not require -- military detention for citizens who have joined our enemy. The bill does not expand or change current law. It is important to note that the Supreme Court has ruled as recently as 2004 that the executive branch has the authority to detain American citizens in military custody if they are enemy combatants.

Make no mistake, Americans who join the terrorist fight and plot murderous attacks against us are enemies of our country. Regardless, all enemy combatants held in military custody, citizens and non-citizens, are given due process. They are entitled to a habeas hearing before an independent federal judge, where they are appointed counsel, to challenge the legality of their detention; there is also a separate periodic review process.

The bill does have a mandatory military custody provision, which only applies to foreigners who are members of al Qaeda or an associated force who have planned or carried out an attack or attempted attack on America or our allies. The mandatory military custody provision does not apply to U.S. citizens, and the provision requiring military custody for a limited subset of foreign terrorists includes a national security waiver the president could use to transfer any military detainee to civilian custody for trial in the federal courts.

We are at war with al Qaeda: enemies who have no value for human life and who are willing to kill themselves to strike us where it hurts us the most -- on our own soil. In fighting this war, it is critical to appreciate why defense, law enforcement and intelligence officials need the authority to detain enemy combatants in military custody. In the absence of that authority, all terrorists must be placed in our civilian criminal justice system and provided with all the rights that come with it, including Miranda rights, speedy presentment rights and the right to counsel during interrogation. As a former prosecutor, I have the utmost confidence in America's criminal justice system, but it is not designed to gather and protect intelligence that is vital to our national security. No terrorist should ever hear the words "you have the right to remain silent." By treating terrorists like common criminals, we lose important opportunities to obtain information that can help protect Americans.

There is a clear distinction between terrorists who plot murderous attacks against our country and an ordinary criminal robbing a corner store. Treating terrorism as a mere law enforcement matter fails to recognize that we face a deadly and determined enemy. As such, we need a different approach for how we question these combatants.

For example, what if we had caught some of the 9/11 hijackers before they boarded one of the planes? Would we have given them Miranda rights, thereby losing the opportunity to obtain information to stop their attacks from unfolding? Unfortunately, under the status quo, such a scenario could occur.

We need to be able to gather as much intelligence as possible when we capture a member of al Qaeda or an associated force in order to protect American lives. When we treat enemy combatants like common criminals, we risk losing information that can prevent future terrorist attacks.

Sen. Kelly Ayotte, of Nashua, served as New Hampshire's Attorney General and is currently a member of the Senate Armed Services Committee.

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