Ex-Rumsfeld adviser: Move Guantanamo detainees to US

Matthew Waxman says he sees merit in suggestion to establish a "National Security Court" to provide external judicial review.

By HAVIV RETTIG GUR
Guantanamo Bay 224.88 (photo credit: AP)
Guantanamo Bay 224.88
(photo credit: AP)
Holding terror suspects at Guantanamo must stop and new legislation dealing with detainee policy adopted, Matthew Waxman, who was US deputy assistant secretary of defense for detainee affairs under former secretary of defense Donald Rumsfeld, told The Jerusalem Post on Sunday. The interview took place after Waxman spoke at the Israel Program on Constitutional Government hosted by Tel Aviv University's Harold Hartog School of Government and Policy. Waxman was appointed as deputy assistant secretary after the Abu Ghraib prisoner abuse scandal in 2004 and left amid reports that his attempts at reforming US detainee policy were opposed within the Defense Department. The Bush administration has been much criticized for maintaining a detention mechanism that does not include external judicial review, but has replied that the detainees are enemy combatants who can be held until a state of war with the detainees' terrorist groups is over. Waxman, who has also served as acting director of the Policy Planning Staff at the State Department and now teaches at Columbia University Law School, suggested the detainees could be transferred to American soil, "where constitutional rights apply," once Congress approved legislation establishing a mechanism for their incarceration. "The goal is to define what rules should regulate who can be detained, under what standards, what rules of evidence would apply and how individual decisions are going to be reviewed," he said. He sees merit in the suggestion that Congress establish a "National Security Court" or "terrorist court," to provide external judicial review to the detainee process without exposing US intelligence-gathering organizations and methods. The needed "legal innovation" has not yet taken place, Waxman believes, because of the "view in the White House that these are executive matters not subject to legislative or judicial regulation." The Bush administration had two reasons to distance Congress and the courts from the detention process, Waxman said. "Practically, they were worried that the rules Congress or the courts would create would be too restrictive and wouldn't allow sufficient flexibility to detain or interrogate effectively," and ideologically they were opposed to such interference out of "a legal view that as a matter of constitutional law, because we're in a war, these are issues that fall within executive authority." Asked who constituted "the Bush administration" in this case, he clarified, "Lawyers working directly for the president and the vice president." Waxman is sympathetic to this concern. On the issue of terror suspects who constitute "ticking time bombs," for example: "When you look at the legislation that Congress has either passed or considered, it doesn't usually make any distinction for a ticking time bomb situation. So it is likely congressional legislation would restrict flexibility even in that situation." But the current system, he believes, is a strategic liability to the United States. "Guantanamo right now does more harm than good," and the Bush administration's decision to keep the detainees outside the reach of the American political and judicial systems was mistaken because it created a situation "that is not durable," he said. "A solution to Guantanamo has to be durable legally, politically and diplomatically, but the debate has now become so politically polarized that it's hard to work on a solution at this point," Waxman said. The diplomatic tension Guantanamo engenders is particularly difficult, he said. "One important role law plays [in diplomacy] is in building common operating rules," he said. While anti-terrorism cooperation with Europe is "generally good," it isn't "as strong as it could be because of these strong legal disagreements. As the legal issue becomes more politicized, it could push us farther apart," Waxman said.