International standards for detaining terrorism suspects: moving beyond the armed conflict-criminal divide.

Author:Hakimi, Monica
  1. INTRODUCTION II. A TRIPOLAR PARADIGM A. Armed Conflict? B. Detention Under the Law of Armed Conflict C. Detention Under Human Rights Law 1. Criminal Detention 2. Administrative Detention III. EXAMINING ADMINISTRATIVE DETENTION A. Detention Predicated on Criminal or Immigration Proceedings B. Pure Security-Based Detention IV. INTERNATIONAL PRACTICE: GROPING FOR ALTERNATIVES A. Rejecting the Armed-Conflict Approach B. But Evading the Criminal Process Discreetly C. ... And Through Administrative Detention 1. Detention Predicated on Criminal or Immigration Proceedings 2. Pure Security-Based Detention V. DEVELOPING COHERENT STANDARDS A. Prompt and Meaningful Legal Process B. Non-Arbitrariness C. Form of Administrative Detention D. Relationship to the Criminal Law VI. CONCLUSION I. INTRODUCTION

    Although sometimes described as war, the fight against transnational al jihadi groups (referred to for shorthand as the "fight against terrorism") largely takes place away from any recognizable battlefield. Terrorism suspects are captured in houses, on street corners, and at border crossings around the globe. Khalid Shaikh Mohammed, the high-level Qaeda operative who planned the September 11 attacks, was captured by the Pakistani government in a residence in Pakistan. (1) Abu Omar, a radical Muslim imam, was apparently abducted by U.S. and Italian agents off the streets of Milan. (2) And Abu Baker Bashir, the spiritual leader of the Qaeda-affiliated group responsible for the 2002 Bali bombings, was arrested in a hospital in Indonesia. (3) Once captured, these suspects face a host of possible futures: they might be deported to their states of nationality; they might be criminally prosecuted for offenses under national law; they might be transferred to a foreign state for detention and interrogation; or they might be detained for extended periods in national detention facilities, like the U.S. facility at Guantanamo Bay, Cuba.

    From an international legal perspective, the critical question with respect to terrorism suspects who are not captured on a recognizable battlefield (referred to here as "non-battlefield detainees") is whether they have any rights not available to detainees picked up in a theater of combat. Much of the legal discussion on terrorism detainees has uncritically lumped non-battlefield detainees together with those captured on a recognizable battlefield, but the context of the capture is significant. International law historically differentiates between detentions that occur in states at peace and those that occur during war. In peacetime, international human rights law imposes procedural and substantive constraints on a state's authority to detain. For instance, any detention must be grounded in law, must not be arbitrary, and must be subject to judicial review. (4) In wartime, the law of armed conflict generally applies as the lex specialis and permits states to detain persons reasonably suspected of threatening state security, without affording them judicial guarantees. (5) That expansive authority to detain reflects the understanding that, during war, the balance between security and liberty shifts. The state's security interests become paramount, so the liberty costs of detaining and thereby incapacitating the enemy are tolerated.

    Since the September 11 terrorist attacks, two dominant strands of thought have emerged on the international law that governs non-battlefield detentions. One strand asserts that states are at war with al Qaeda and other transnational jihadi groups, and that the law of armed conflict thus applies to permit the detention of terrorism suspects captured anywhere in the world for as long as necessary or until "hostilities" cease. (6) The poster child for this position is Khalid Shaikh Mohammed, who the U.S. government first detained at a secret prison operated by the CIA, and then at Guantanamo Bay. (7) Khalid Shaikh Mohammed views himself as a soldier fighting a war against the United States and its allies. (8) And by U.S. government accounts, his detention and the detention of other high-level terrorist operatives have been invaluable to preventing terrorist attacks and saving innocent lives. (9) Like armed-conflict detentions, then, counterterrorism detentions are not necessarily intended to punish for prior wrongdoing, (10) but to prevent terrorist operatives from planning or engaging in further attacks and, if possible, to obtain from them information for use in future military, intelligence, or law enforcement operations. Advocates of the armed-conflict approach assert that these goals cannot always be achieved through the criminal process. (11)

    The second, competing strand of thought rejects the application of the law of armed conflict and asserts that international human rights law applies to prohibit the detention of non-battlefield suspects except through the criminal process. (12) Advocates of this position point to the inadequacy of the controls under the law of armed conflict, to the very real possibility that detainees will be held for life without legal process, and to the known incidents of mistake. Individuals wrongfully suspected of terrorism have been captured in the course of their everyday lives and then detained for extended periods without any judicial oversight, and often without communication with the outside world. In one case, a German national (named Khaled el-Masri) was arrested by Macedonian officials, transferred to the CIA for detention and interrogation, and then released five months later in rural Albania after U.S. officials determined that he had been mistakenly identified as a terrorism suspect. (13) This and similar cases demonstrate the problem with applying the law of armed conflict without sufficient checks and in the absence of any geographic or temporal constraints: it comes to displace human rights law, such that anyone who is merely suspected of terrorism may be picked up anywhere in the world and detained indefinitely, without judicial guarantees. (14) The criminal process, by contrast, is a fair and transparent mechanism for determining that those who are suspected of terrorism are in fact dangerous, based on their prior conduct.

    This debate is important, but it has become both sterile and divorced from reality. In fact, neither strand of thought tracks international law and practice. International human rights law recognizes that, even in peacetime, those who threaten state security may be detained outside the criminal process and instead through calibrated systems of administrative detention. The option of administrative detention, however, has been neglected in the international legal debate on non-battlefield detentions. (15) This has been to our detriment. International practice demonstrates that states--and particularly western democracies that take seriously their human rights obligations, but also face a real threat from transnational jihadi terrorism--perceive an occasional but serious need to detain non-battlefield terrorism suspects outside the criminal process. In the absence of a clear legal framework for satisfying that need, these states have resorted to a variety of ad hoc or uncontrolled measures. Thus, although all western democracies continue to rely heavily on the criminal process to prosecute and detain non-battlefield suspects, (16) many have also acted outside that process. The bipolar paradigm for thinking about non-battlefield detentions--as armed-conflict or criminal--fails to reflect international law and is increasingly out of step with international practice.

    This Article takes that international practice seriously in order to move the conversation beyond the stale armed-conflict or criminal divide. Part II reviews the current debate and argues that international law actually presents us with three--not two--broad models for detention in the fight against terrorism: the armed-conflict model and, under human rights law, the criminal and administrative models. Part II demonstrates that international law is ambiguous as to which of these three models properly governs non-battlefield detentions, but that both the armed-conflict model and exclusive reliance on the criminal model carry significant costs. Administrative detention thus is a potentially appealing alternative for incapacitating non-battlefield suspects before they strike.

    Part III, however, argues that the legal parameters of administrative detention are poorly developed or unworkable in the security context. This renders administrative detention insufficiently constrained and easily subject to abuse. Indeed, several states have resorted to administrative detention in the fight against terrorism and have failed to administer adequate controls. States have also engaged in other, even less palatable measures. The United States consistently has asserted the authority to detain non-battlefield suspects based on the law of armed conflict, and even though most other states publicly reject that practice, several have discreetly participated in it. (17) Several have also sought to deport terrorism suspects, despite the risk of mistreatment in their home countries, in order to reduce the more proximate threat these suspects pose in the deporting states' own territories. (18) Part IV reviews that practice to demonstrate that states perceive a real need to contain the threat from non-battlefield suspects without resort to the criminal process, and that they have employed a range of ad hoc or uncontrolled measures to satisfy that need.

    In light of that practice, Part V argues that international law should continue to allow states to detain non-battlefield suspects outside the criminal process, but that it must better regulate such detention to protect against abuse. The oft-overlooked administrative model is best suited to accomplish these goals, if the law on administrative detention is developed to better balance the liberty and security...

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