The Way Forward: Post-9/11 Principles

JURIST Contributing Editor Mary Ellen O'Connell of Notre Dame Law School and panel colleagues at a recent Washburn University School of Law symposium on "The Rule of Law and the Global War on Terrorism" offer their consensus on the appropriate way forward on critical issues in international law and policy that will confront President Barack Obama's Administration when it takes office on January 20, 2009...

Washburn Consensus on Post-9/11 Principles

1. The phrase "Global War on Terrorism" should no longer be used in the sense of an on-going "war" or "armed conflict" being waged against "terrorism". Nor should it serve as either the legal or security policy basis for the range of counter- and anti-terrorism measures taken by the Administration in addressing the very real and present challenges faced by the United States and other nations in addressing terrorism.

2. The Administration should announce that it is taking immediate steps to close the interrogation and detention facility at Guantanamo Bay, Cuba, with a view to removing all remaining detainees by July 1, 2009.

3. The Military Commissions Act of 2006 should be repealed in its entirety, and all activities currently being conducted under the Military Commission process constituted by the Act should be terminated.

4. Persons accused of committing acts of terrorism, war crimes or other serious human rights violations should be tried, as appropriate, before Article III courts or, as provided for in the Uniform Code of Military Justice, by courts-martial or military commission.

5. The Detainee Treatment Act of 2005 should be amended to ensure the application of one standard of treatment and interrogation to all detainees held in U.S. custody or control.

6. The single standard for the treatment and interrogation of all detainees held in U.S. custody or control should be that reflected in Army Field Manual 2-22.3, Human Intelligence Collector Operations.

7. Any presidential findings, statements, Executive Orders, or other forms of authorization related to detainee treatment and interrogation that sanction or authorize methods inconsistent with Field Manual 2-22.3 should be withdrawn.

8. A comprehensive investigation of alleged post-9/11 U.S.-held detainee abuse should be undertaken by an independent, expert commission with the goal of producing a 2009 report detailing both the findings and recommendations of this commission.

Text taken here.