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Senate judiciary subcommittee urged to reject 'prolonged detention' policy

[JURIST] The US Senate Judiciary Committee's Subcommittee on the Constitution [official website] on Tuesday heard testimony [materials; video] regarding the "legal, moral and national security impact" of long-term, indefinite detention without trial of terrorism suspects. Judiciary Committee Chairman Senator Patrick Leahy (D-VT) [official website] said that the hearing was intended to advise [statement] the committee about "various proposals for preventive detention that have been debated in recent months by experts and academics." Sarah Cleveland [official profile], Professor of Human and Constitutional Rights at Columbia Law School [official website], said that she was asking [testimony] Congress "to resist any effort to authorize the United States to establish an indefinite detention system for terrorism suspects seized outside a traditional battlefield." Saying that "prolonged detention without trial offends the world's most basic sense of fairness," Cleveland concluded that the "Constitution does not recognize a roving power to detain dangerous persons as a substitute for criminal trial." Tom Malinowski [official profile], Washington advocacy director for Human Rights Watch [advocacy website], said that the US criminal justice system was the best alternative [testimony] to continued detention of suspects who can't be returned to their country of origin. Elisa Massimino [official profile], CEO and Executive Director of Human Rights First [advocacy website] said [testimony] that, although there has not been a "full public accounting of the strategic and operational cost" of indefinite detention, "there is plenty of evidence to suggest that continuing down the road prolonged detention without trial will continue to undermine our security." Former Assistant Attorney in the Eastern District of Virginia [official website] David Laufman [professional profile] told the subcommittee [testimony] that his experience prosecuting terrorism-related cases after the September 11 attacks convinced him that "terrorism prosecutions should be brought in Article III courts whenever possible" because doing so would confer "greater legitimacy on these prosecutions." David Rivkin [professional profile], Co-Chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies [advocacy website], discussed the history of detaining [testimony] "unlawful combatants" in prior American conflicts, calling the detention of al Qaeda and Taliban members for the duration of hostilities a "legal and ... immensely reasonable" policy. Richard Klingler [professional profile], formerly General Counsel to the National Security Council [official website] and Senior Associate Counsel to President George W. Bush, said [testimony] that the country has a moral obligation to protect its troops and that a "detention practice that is lawful, that focuses on discrete groups of foreigners abroad who would harm our troops and citizens, and that avoids alternatives that undermine the rights of U.S. citizens has a strong moral claim."

The committee held the hearing after US President Barack Obama said last month, during a national security speech [JURIST report], that it may be necessary to continue detention without trial of some terrorism suspects after the closure of Guantanamo Bay [JURIST news archive]. In addition to questions about prosecuting terrorism suspects in federal criminal trials, Obama's plan to close the facility within one year, announced in a January executive order [text; JURIST report], has been hampered by Congressional funding issues in both the House and Senate [JURIST reports] and by difficulty finding countries willing to take released detainees [JURIST news archive]

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Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible format.

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