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Detaining people without trial harms America

By Sen. Mark Udall and U.S. Rep. Adam Smith, Special to CNN
updated 7:53 AM EDT, Fri June 8, 2012
This image, reviewed by the U.S. military and shot through a one-way mirror, shows guards moving a detainee from his cell at Guantanamo Bay, Cuba, in January.
This image, reviewed by the U.S. military and shot through a one-way mirror, shows guards moving a detainee from his cell at Guantanamo Bay, Cuba, in January.
STORY HIGHLIGHTS
  • A federal judge temporarily blocks law allowing indefinite detention of terrorism suspects
  • Udall, Smith: Law should be changed so that the accused are tried in regular courts
  • They say standard law enforcement system has handled terrorism cases very well
  • Authors: U.S. Constitution affords liberties as well as safety and security

Editor's note: Mark Udall is the senior senator for Colorado. A Democrat, he serves on the Senate Select Committee on Intelligence and the Senate Armed Services Committee. Adam Smith represents Washington's 9th Congressional District. He serves as the ranking Democratic member of the House Armed Services Committee.

(CNN) -- Recently, a federal judge blocked the enforcement and implementation of the indefinite military detention authority that Congress passed late last year as part of the 2012 National Defense Authorization Act. It's a welcome sign from our courts that constitutional safeguards still exist.

When this provision was debated last year, we argued that it was an unwise expansion of law that jeopardized the freedoms of all Americans. We were heartened that the court has wisely chosen to block this policy for much the same reason we opposed it.

However, this federal court injunction is only temporary, and the debate over whether the military has the authority to indefinitely detain individuals captured on U.S. soil without trial is far from over.

Sen. Mark Udall
Sen. Mark Udall

Earlier this year, we introduced legislation, recently co-sponsored by U.S. Rep. Justin Amash, R-Michigan, that would require that civilian law enforcement, including the FBI and civilian courts, take the lead with respect to those captured or detained in the United States.

Some, however, have argued that this approach to national security -- one that involves law enforcement and not solely the military -- is tantamount to ceding ground to al Qaeda. This argument, designed to paint members of Congress as "soft on terror," is wrong on two fronts.

First, enemies who want to attack us on our native soil -- particularly would-be suicide bombers -- do not intend to be captured and are not lured to America by the identity of their potential jailer or prosecutor. The strange assertion that our civilian courts and law enforcement system serves as an incentive for terrorists to come to America ignores the terrorists' true motivations.

Rep. Adam Smith
Rep. Adam Smith

The question of civilian versus military authority is irrelevant to our enemies. It is, however, incredibly important to protecting Americans' constitutional rights and freedoms while still allowing us to effectively fight terrorism.

Second, our civilian law enforcement and justice system have worked exceptionally well in prosecuting, convicting and jailing dangerous terrorists. To say that the military is the only institution up to the task is an unfair indictment of the valiant work done by the men and women who have kept us safe since 9/11.

We have convicted hundreds of terrorists in our federal civilian courts, with many of them incarcerated at the "Supermax" prison in Florence, Colorado. Yet military commissions in Guantanamo Bay have only resulted in seven convictions, and two of those terrorists have already been released.

As Congress works to update our national defense policy and the courts continue to weigh the implications of allowing indefinite military detention without trial, we remain committed to defending our country from those who seek to do us harm, both abroad and here at home.

The debate over protecting constitutional liberties alongside our counterterrorism efforts is not now and has never been an issue of rewarding terrorists -- just ask any inmate at Supermax.

Rather, as Defense Secretary Leon Panetta, FBI Director Robert Mueller and Director of National Intelligence James Clapper advocated during last year's debate, it's about giving our law enforcement community the maximum ability to protect us within our constitutional system. This is a system that guarantees freedom and liberty to the American people alongside their safety and security.

Inviting our armed forces into our cities and towns with the power to indefinitely detain Americans without trial is a misguided attempt that erodes our rights to due process and limits the effectiveness of civilian law enforcement.

This approach also would unnecessarily burden our military with a responsibility it does not want and, most importantly, does not make us safer.

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The opinions expressed in this commentary are solely those of the authors.

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