Smith proposes bill seeking to try terror suspects in civilian courts

Mar 13, 2012

Seattle Times: Smith proposes bill seeking to try terror suspects in civilian courts

By Kyung M. Song
March 13, 2012

WASHINGTON — Last May, U.S. Rep. Adam Smith sought to amend the proposed National Defense Authorization Act to require any alleged terrorist arrested in the United States to be tried in civilian courts, not by military commissions.

The Tacoma Democrat's motion failed, and Smith later reluctantly helped pass the defense act with a controversial provision giving the military authority to lock up suspected terrorists without ever bringing them to trial.

Smith now is trying to undo that.

Smith and Sen. Mark Udall, D-Colo., have rolled out companion bills requiring that anyone, U.S. citizen or not, picked up domestically on suspicion of terrorism be tried in state or federal courts. The legislation, they say, would ensure the accused their constitutional rights, including the right to hear the charges and to a fair and speedy trial.

Smith, the top Democrat on the House Armed Services Committee, said he does not know if he will succeed this time. Indeed, similar efforts by Udall and others in the Senate to curb the indefinite-detention clause last year also failed.

But Smith is banking in part on congressional remorse that last year's law needlessly encroaches on civil liberties. Some U.S. courts have previously allowed indefinite detention, while others have ruled that, at least in some cases, the practice violates prisoners' due-process rights. The 2012 defense act explicitly authorizes — if not expands — indefinite detentions.

Since 9/11, more than 400 people accused of international terrorism have been successfully convicted in U.S. federal courts, including Zacarias Moussaoui, the so-called 20th hijacker, and Richard Reid, the "Shoe Bomber."

"Ultimately, the criminal-justice system works," Smith said.

In contrast, the Defense Department has imprisoned nearly 800 men at Guantánamo Bay detention camp in Cuba since its opening 10 years ago. Of those, only seven have been convicted by military tribunals there.

As of January, Guantánamo still held 171 prisoners, 89 of whom the government has cleared for release, according to the American Civil Liberties Union (ACLU). But Congress has effectively blocked the Obama administration from transferring the prisoners elsewhere.

Smith, whose district includes Joint Base Lewis-McChord, also introduced an amendment last year to lift the ban on trying Guantánamo inmates in civilian courts. That, too, fell short.

Rep. Rick Larsen, D-Lake Stevens, who also serves on the Armed Services Committee, said the panel's military-centric outlook makes it a difficult venue for pushing back against military detention. Smith's bill, Larsen said, might fare better if it were before the House Judiciary Committee.

Larsen said Congress should fix what he sees as flawed law. Smith's bill has 34 Democratic and two Republican co-sponsors, including Larsen, Jim McDermott, D-Seattle, and Jay Inslee, D-Bainbridge Island.

Chris Anders, senior legislative counsel with the ACLU's Washington, D.C., office, said the Smith-Udall bills would make clear that even terrorism suspects are entitled to constitutional protection.

Obama initially threatened to veto the defense-authorization act. He ultimately signed it after it was revised to clarify that the requirement for military detention does not apply to U.S. citizens or legal residents and that the FBI and other civilian law enforcement can still investigate terrorism cases.

At the signing, Obama said his administration would not keep Americans under military custody without a trial. Anders said Smith is trying to codify that pledge.

"A lot of people would feel reassured that no president will have the power to indefinitely detain people," Anders said. "Smith's bill makes it very explicit that can't happen."

Had Smith's bill been in effect after 9/11, Jose Padilla, an American arrested at Chicago O'Hare Airport in 2002 for allegedly plotting a radioactive bomb attack, could not have been declared an enemy combatant by the Bush administration and held in military prison without facing criminal charges. Instead, Smith said, Padilla — and the public — would have received swifter justice in a federal court, where he was eventually convicted of different terrorism-related charges.

"But we would not have waited 3 ½ years" that Padilla was held in a military brig in South Carolina, Smith said. "For anyone who is worried about the executive branch having too much power, here is an opportunity to change the law."