Members of both parties expressed a strong interest in protecting constitutional rights while prosecuting the war on terror at a House Judiciary Committee hearing Wednesday.
The sparsely attended event touched on fundamental issues of liberty and security. Chairman Robert Goodlatte (R-Va.) began by singling out the 2012 National Defense Authorization Act, which, along with the original Authorization for Use of Military Force after 9/11, could be interpreted as permitting the indefinite detention of American citizens without trial if they were party to terrorist activity.
“The mere notion that this authority exists is troubling in and of itself,” Goodlatte said, unsatisfied by the Obama administration’s assurance that it would never actually indefinitely detain citizens, “and I believe that this body should make clear that citizens of this nation cannot be detained without receiving all of their due process rights in an Article III court.”
Ranking member John Conyers (D-Mich.) concurred, saying Madison’s warning that war is the greatest threat to liberty has been ignored. The hearing was convened on the matter of U.S. citizens’ constitutional rights, but Conyers proposed to consider non-citizens’ rights as well, and noted that the Constitution protects individuals detained anywhere in the world by the United States. This sentiment was earnestly affirmed by Chairman Goodlatte and undergirded the larger discussion.
Conyers and many other members zeroed in on the Boston Marathon Bombing in discussing the balance between the constitutional right to due process and the public safety interest in extracting information from suspects. Unless they are independently corroborated, a suspect’s statments are only admissible in court if he or she has been Mirandized, informed of the right to remain silent, etc. However, other considerations, such as presentment, also complicate the question of due process vis-a-vis lawful interrogation.
Brookings Institute Senior Fellow Benjamin Wittes encapsulated the fundamental issue: “I think there are things Congress can do to add flexibility on that issue [of presentment], but at the end of the day we are dealing with people’s constitutional rights and sometimes they will assert them,” he said, later adding, “That has consequences and sometimes those consequences are intelligence loss.”
Overall the mood among the assembled witnesses was optimistic. By consensus, robust frameworks have been established since 9/11 to allow the traditional justice system to handle cases with bearing on national security. The key issue moving forward is ensuring that this framework, not a completely novel military detainee paradigm, can function effectively.