We do not join the chorus of critics insisting that all suspected terrorists be treated as enemy combatants. The law enforcement model, including prosecution in civilian courts, has been a powerful and time-tested tool. Federal courts should be the preferred venue for U.S. citizens. But it gives us pause that the administration has not given more consideration to other approaches, including the possibility of designating suspects as enemy combatants to allow for lengthier interrogations, which could yield intelligence to thwart terrorist operations and future attacks…
Lawmakers and the White House should work together to craft a more rational structure — modeled after systems in place in Israel and several European countries — that allows mining of intelligence and does not force the suspension of interrogations once an imminent threat is ruled out. For example, the government would have a set number of days to question terrorism suspects; it would have to advise a federal court of its interrogation, but public notice of the suspect’s detention could be withheld so as not to tip off possible conspirators. Interrogators would be bound by all domestic and international strictures against torture and cruel and inhumane treatment. Once the interrogation time period expired, the government would have to decide whether to move forward with a federal court prosecution or a military commission. In rare cases, the government should have the flexibility to hold a suspect who is deemed too dangerous to release but against whom there is not enough evidence to prosecute in either venue; such cases would be subject to periodic judicial review.
