In New Jersey earlier this year, a police officer noticed a man who appeared to be of Middle Eastern descent dressed in business clothes near a vital bridge.
The officer approached the man and found out he was wearing a wet suit under his business suit and carrying a knife and an underwater camera.
Highly suspicious, but not illegal.
About the same time, a man approached a border crossing in Texas. Officials checked the Terrorist Screening Center's watch list of suspected terrorists and found the man's name was on it. The list is not an arrest warrant; it merely warns officials that certain people should be denied entry to the United States.
The man in New Jersey was questioned and released. The man on the border was denied entry. He would be turned back at three other points of entry over the next several days.
Both cases highlight a new challenge for those who seek to prevent terrorism and adhere to the United States' high standards for civil liberty and rule of law. In both cases, we did not have enough information to arrest the people, let alone to convict them of anything. Indeed, both were set free even though both clearly seemed to pose a threat to American security.
Then, there are suspects such as Zacarias Moussaoui, the alleged 20th hijacker. The government had enough evidence to arrest him and bring him to trial. But criminal trial rules require he have access to witnesses who could dispute the government's charges. One problem: the witnesses he requested -- two of the top-ranking people in al Qaeda -- can't be produced by the government because they are being held and questioned on other matters and because of the security concerns a court appearance for them would raise.
Then, there are the cases where reliable intelligence information comes in a form -- hearsay -- that is utterly unacceptable in criminal proceedings.
Right now, we handle these and similarly complicated situations on an ad hoc, case-by-case basis, which is not consistent with the American concept of justice. We need a system that brings consistency to the process and strikes the proper balance between security and civil liberties.
In other words, we need an entirely new legal architecture designed specifically for this purpose. And we need it now -- before another terrorist attack on American soil enflames the public and makes striking the proper balance nearly impossible.
A new system that allows preventive detention -- holding people without meeting the traditional burdens of proof required in criminal proceedings -- should be limited solely to those suspected of terrorist acts. 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 force a change in government policy or intimidate the public, and/or 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. And to do so, even he must be able to declare that credible evidence exists that the person in question plans to commit a terrorist act or clearly is affiliated with a terrorist organization. Even then, this system should be used only when applying the existing criminal-justice system would compromise national security.
Further, 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 reason for detention and the underlying factual basis, and he or she should have the 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 of establishing the necessity of detention by clear and convincing evidence. The government may be permitted to delay this procedure to continue interrogation of some suspects, but these delays ought not exceed 30 days.
Our goal should be to maximize both order and liberty. We do
that best not by closing our eyes to the necessity of security, nor
by allowing security concerns to run rampant without oversight. We
do it by taking steps to ensure government power is exercised
thoughtfully and with deep care. A well-designed system of
preventive detention can do that.
James Jay Carafano, a 25-year veteran of the armed forces, is a senior research fellow in defense at The Heritage Foundation (heritage.org). Paul Rosenzweig, a senior legal research Fellow in Heritage's Center for Legal and Judicial Studies, is an adjunct professor of law at George Mason University.
First appeared on Fox News