The Commission on Security and Cooperation in Europe (U.S. Helsinki Commission) held a congressional hearing last week to revisit Guantanamo policies in the wake of Boumediene v. Bush, a recent Supreme Court decision that extends habeas corpus rights to detainees in Guantanamo Bay.
Co-Chairman Senator Benjamin L. Cardin (D-MD) says that in light of Boumediene the U.S. should “reopen entirely the question of how we handle terrorism suspects.” Calling Guantanamo a “lightning rod for international human rights criticism of the United States,” he encourages the U.S. to look abroad to see how other countries handle captured terrorist suspects.
“There has been precious little discussion in this town of what other countries do, and I think we need to broaden our examination of these issues to at least consider what European countries are doing with their terror suspects,” said Sen. Cardin.
With this goal in mind, Jeremy Shapiro, Brookings Institution Fellow and Research Director for the Center on the U.S. and Europe, testified before Congress to describe how France and Great Britain deal with terrorist detention.
Shapiro noted that both the French and British model has come under harsh criticism from human rights organizations because of their pre-charge and pre-trial detainment policies. The French pre-emptive system allows a suspect to be held for four years without trial, and the British system can detain a suspect for 28 days without charge. This legal authorization even falls short of Americans standards of justice, according to Shapiro.
But in the France, this system is not highly disputed or controversial because it is deeply rooted in France’s legal tradition.
“Counterterrorism measures, including those regarding detention, need to be rooted in pre-existing notions of law and fairness and they need to have broad support across the political spectrum,” said Shapiro. “This fact that these measures are consistent with French traditions and firmly embedded in law helps to limit public disapproval.”
Chairman of the Helsinki Commission, Representative Alcee L. Hastings (D-FL), said there might be some value in observing the U.S.’s overseas allies when it comes to terrorists, and he even expressed interest in what Russia’s protocol is for dealing with terrorists. But Representative Hastings also said gazing abroad may not be the solution to the Guantanamo problem.
“I’m not so sure that the French model or the British model or many of the others that I have seen come any closer to what is needed—and that’s justice, swift and true—to answer what is a complex problem for us,” Rep. Hastings said.
Although the Congressmen did not seem to agree upon where to look for answers for the described ‘Guantanamo problem,’ they agreed that it is Congress’ responsibility to address issues the Supreme Court did not speak to in Boumediene.
“There are still many unresolved matters that have to be addressed,” agreed Rep. G.K. Butterfield (D-NC), a member of the Helsinki Commission. “But we can be assertive here in the Congress. We can lead the way.”
The scholars who testified in the hearing also encouraged Congress to provide leadership by passing legislation pertaining to detainment and treatment of detainees.
“The U.S. government and the United States more generally, is in need of some clarity of the law here,” said Shapiro in his testimony. “I read the Supreme Court’s decision in that regard as trying to put the onus on the Congress and the executive branch to work together on legislation that would answer some of those questions.”
Specifically, Shapiro said Congress should pass legislation addressing the immediate procedural issues, such as “rules that would guide the federal courts in handling the hundreds of detainee habeas cases in terms of which court will hear them, pursuant to what type of rules and what kind of appeal.” He also thinks the Congress needs to look at the bigger picture and pass laws that will pertain beyond Guantanamo and set guidelines on how to detain terrorist suspects in the future.
Shapiro said legislation is necessary to deal with these two categories, but he warns Congress to be responsible in their legislative duties by exercising caution.
“There is going to be a need for congressional legislation I think to deal with those issues,” said Representative Henry Waxman (D-CA). “But I would urge Congress to make sure that it gets those laws put into place correctly rather than quickly.
Emily Miller is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.
