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Toward a Rational Detention Policy



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Two recent events have reignited the debate about America’s detention policy: press reports about a Somali national held aboard a Navy ship for two months, and congressional testimony intimating that captured terrorists are often released due to a lack of a coherent policy. The administration’s mulish ideological aversion to Guantanamo Bay, the most effective place to hold enemy combatants, has made matters worse. So has Attorney General Holder’s “factual” assertion that “the most powerful tool in fighting terrorism is the civilian court system,” which is patently false. His probe of CIA interrogators hurt the intelligence community, endangered lives down range and at home, and made an already hesitant American interrogator corps even more timid.

The truth is that our interrogators are already confused and hamstrung enough. The balancing act required to sift through the myriad roles they play in theatre is exhausting. Intelligence collectors who deploy in today’s conflict are part soldier, part peacekeeper, and part cop. Each enemy detention brings with it questions that don’t have consistent answers: whether to administer Miranda, whether a lawyer is required, and where to hold the individual, to name a few. There has been a dramatic increase in the number of administrative and bureaucratic steps necessary to simply question enemy combatants, resulting in tiny windows of time during which subjects can actually be questioned. Add to that the unbelievable fact that our interrogation manuals are publically accessible — where do you think al-Qaeda derived their own manuals for resistance training from? Often, detainees know precisely how to act, what to say, and most importantly what to allege in order to end their interrogation and stop the intelligence-collection process dead in its tracks.

This irrational approach needs to be fixed. There are commonsense criteria that should apply to all individuals, American citizen or not: If you actively aid, or attempt to aid, any terrorist or terrorist group whose goal is to attack American or allied targets anywhere in the world, no matter whether they succeed or fail, or if you are inspired by jihadist propaganda to perpetrate violence in any manner on American soil (the so called “lone wolf” syndrome), you will be considered an enemy combatant. Only so many “lone wolves” can strike before they need to be considered part of the pack. You will not be Mirandized. You will not have access to the civilian court system. You will be held at Guantanamo Bay, where you will be questioned to the fullest extent for as long as is deemed necessary in order to glean all intelligence information you possess. And you will then have your day in a military court.

Skeptics will no doubt point to past problems with this type of approach. Admittedly, abuse has occurred, which was tragic. But we also know those abuses are not the norm. Those responsible were held accountable and punished to the fullest extent of the law, as they should be. The assumption going forward should be that the professionalism and prudence of our intelligence collectors will prevail. The more we limit effective tactics in the fight against terrorism, the more we prolong and embolden it. We need to face the real fact: We remain at war. New stories of plots involving surgical implants as a method of attack should only serve as a potent reminder of this. As Charles Krauthammer has asserted, “We should treat enemy combatants as enemy combatants” lest we put ourselves “in the absurd position of capturing enemy combatants and then prohibiting ourselves from obtaining the information they have, and we need, to protect innocent lives.” Our military and intelligence officials swear an oath to protect and defend those lives. The most powerful weapon we have in fighting terrorism is them. Let them do their jobs.

— Brian J. Pawlowski is a former military interrogator who deployed twice in support of Operation Iraqi Freedom.



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