Heritage Foundation Leadership for America

WASHINGTON, SEPT. 20, 2004 – What do we do when the legal rules and premises on which we normally operate leave us vulnerable to terrorist attack? When we can’t prove someone guilty of a crime in the traditional American sense, but the government has information that person plans to perpetrate an attack on our country? When the evidence we’d have to produce to convict a defendant would compromise national security?

What do we do?

Right now, we handle these and similarly complicated situations on an ad hoc, case-by-case basis, which, a new paper from The Heritage Foundation says, is not consistent with the American concept of justice. The paper calls for a system that brings consistency to the process and strikes the proper balance between security and civil liberties.

“What is needed is a new legal architecture to govern the detention of suspected terrorists,” say military and homeland security expert James Jay Carafano and senior analyst Paul Rosenzweig of Heritage’s Center for Legal and Judicial Studies. “If we can do this before another terrorist attack on American soil, these powers will be better constrained and the civil liberties of all involved will be better protected. It won’t be easy, but the time to do it is now.”

A new system that allows preventive detention—detaining people without meeting the traditional burdens of proof required in criminal proceedings—should be limited solely to those suspected of terrorist acts, the authors say. Terrorist acts should be defined narrowly as those that involve the threat of violence and/or risks to the health and safety of the public, that are designed to influence government policy or intimidate the public, and that are taken to advance a political, religious or ideological cause.

Only the U.S. Attorney General should be able to certify people for preventive detention, Carafano and Rosenzweig say. And to do so, he must declare that credible evidence exists that the person in question plans to commit a terrorist act, is affiliated with a terrorist organization and that the existing criminal justice system can’t be applied to this person without compromising national security.

Further, the authors say, the certification must be subject to review in court, and the suspected terrorist should have the right to a defense attorney. The detainee should be presented a notice of the factual basis for detention and have an opportunity to rebut the evidence before a neutral decision maker, perhaps similar to judges in the Foreign Intelligence Surveillance Court.

Rules of evidence may be modified to protect national security, but the government would bear the burden of proof—as it does in all criminal proceedings—and it would have to meet the legal standard known as “clear and convincing.” The government may be forced to delay this procedure to continue interrogation of some suspects, but these delays, say the authors, should not exceed 30 days.

“Our goal should be to maximize both order and liberty,” the authors say. “We do that best not by closing our eyes to the necessity of security, nor by allowing security concerns to run rampant without oversight, but by taking steps to ensure government power is exercised thoughtfully and with deep care.”