Not 'by all means necessary': a comparative framework for post-9/11 approaches to counterterrorism.

• Author: Guiora, Amos N.

Counterterrorism significantly benefits from a comparativist approach. Precisely because no one country has the monopoly on effective operational measures, nation states significantly benefit from analyzing measures applied by other states confronting similar dilemmas and challenges subject to the role of law. To that end, this article examines the policies of targeted killing and administrative detention as applied in Israel and asks whether and how they are applicable to American counterterrorism. In asking this question, it is important to determine whether the two policies are relevant to the U.S. legal framework. An important consideration is how the differences between Israeli and American societies, geographies, constitutions, and strategies condition the counterterrorism policy of each country. As a result of such differences, what works in one country may not work in another. While I am an unequivocal advocate for comparative research and analysis and have sought to bring this approach to my scholarship, I am fully aware of its limitations. That said, I firmly believe that nation states can and must learn from each other. While judicial, constitutional, and societal paradigms are unique and distinct, like-minded civil, democratic states must undertake the critical effort to understand how similar countries address similar issues.

1. INTRODUCTION

   The Obama Administration faces the difficult challenge of developing operational counterterrorism models while confronting determined foes on multiple fronts. Doing so requires the Administration to balance the legitimate rights of the individual with the equally legitimate national security rights of the state. In particular, the Obama Administration faces two critical questions (with which the Bush Administration similarly--and unsuccessfully--struggled): (1) creating and implementing a legal and effective detention paradigm for post 9/11 detainees; and (2) articulating the conditions for authorizing a targeting killing. This article will examine both policies-detention and targeted killing--using a comparative approach.

   Specifically, I will examine both policies through the lens of the Israeli experience. This is not to suggest that the Israeli approach is correct or foolproof. Rather, when treading in these difficult waters, it is important to recognize that learning from others is essential to developing a lawful and effective counterterrorism policy. In addition, I will address--and propose the pursuit of--active judicial review in an effort to ensure checks and balances and separation of powers. Justice Jackson's words regarding an unfettered executive ring as loudly today as they did fifty years ago.

   Section II will focus on administrative detention--both options for future models and lessons from the Israeli experience. In section III, I offer brief comments on targeted killing. Section IV will address the importance of judicial review in the framework of administrative detention and counterterrorism and section V will offer a perspective on comparativism.

2. ADMINISTRATIVE DETENTION

   This discussion addresses current detainees and those who will be detained in the days and years ahead. My fundamental assumption is that the U.S. must replace the existing post 9/11 detention model--frankly, "indefinite detention"--with a paradigm consistent with U.S. constitutional protections and habeas corpus guarantees as the Supreme Court in Boumediene v. Bush (2) and Judge Bates (3) have articulated.

   To do so, the Obama Administration must examine and ultimately resolve several fundamental issues regarding detainees arrested since 9/11 and presently held in Guantanamo Bay, Bagram, Abu Ghraib, and elsewhere by or on behalf of the U.S.:

   (1) Will the post 9/11 paradigm be defined as a traditional criminal law or war paradigm or as a hybrid combining aspects of both?

   (2) What are the criteria for determining whether a specific detainee poses a particular threat to U.S national security?

   (3) What are the standards for judicial review for detainees deemed to pose a threat, after the establishment of a criteria-based vetting process?

   (4) Are all detainees prosecutable or will some be held in an alternate detention paradigm?

   (5) Will released detainees be freed to their country of citizenship, in the U.S. or to some third country, and how will this be determined?

   For detainees arrested and held in the future, I advocate a model based on the criminal law system but modified to reflect the differences between terrorism and what is understood to be the traditional criminal law paradigm. In a nutshell, I define terrorism as actions seeking to advance a cause (religious, social, political, or economic) by killing or injuring innocent civilians or intimidating the civilian population from conducting its normal activities with no pecuniary benefit accrued to the terrorist. In addition, as I have suggested elsewhere, prosecuting accused terrorists often requires the introduction of classified intelligence information. (4) For this reason, I have previously proposed a hybrid model as an alternative judicial paradigm, often called a national security court. (5)

   With respect to detention, I propose adoption of a two-tiered model. If the arrest is based on criminal evidence, detention prior to trial in the traditional criminal law paradigm is appropriate. If, however, the arrest is based on classified intelligence information regarding involvement in terrorist acts, administrative detention should be appropriate. My recommendation for the adoption of an administrative detention model in the U.S. is based on the following considerations:

   (1) A determination that a detainee presents a specific threat to national security;

   (2) An assessment of the reliability and credibility of the intelligence information;

   (3) Active and independent judicial review;

   (4) Source protection subject to independent judicial review, a legitimate consideration in when intelligence information suggests that the prospective detainee is involved in future acts of terrorism.

   The process and considerations of applying administrative detention on specific individuals has developed over the course of many years in Israel. (6) The measure is applied in the West Bank by order of the military commander (Israel has never annexed the West Bank) and in Israel by the Minister of Defense. (7) In both, the decision is subject to judicial review: in the West Bank by two military courts and the Israeli Supreme Court, and in Israel by the Tel Aviv District Court and by the Israeli Supreme Court.

   The Israeli Supreme Court, sitting as the High Court of Justice (HCJ), held administrative detention to be lawful in accordance with Clause 85 of the Defense Emergency Regulation Act of 1945, provided that the available intelligence information indicates that the individual in question is involved in a future act of terrorism. Furthermore, the evidence must meet a six part test of reliability, credibility, validity, viability, time-relevance, and the inability to be presented in open court because of the over-arching requirement to protect an intelligence source. An order for administrative detention is subject to three layers of judicial review: first, a hearing before a military judge, akin to an administrative hearing; second, an appeal before a senior military judge; and finally a hearing before the Israeli Supreme Court (sitting as the HCJ). According to the Defense Emergency Regulation Act, an order may authorize detention for a maximum period of six months, with the opportunity to renew for an additional six months. Although an order may be renewed an unlimited number of times, each renewal order requires the same three-step judicial process.

   The fundamental premise of the administrative detention model is the individual's involvement in a future act. That involvement must present a sufficiently real--not just perceived--threat to national security in order to justify a process in which neither the individual nor counsel see the classified information; (8) judicial hearings are held in camera/ex parte. (9) Human rights organizations have been extremely critical of the denial of the right to confront one's accuser. However, the HCJ has upheld the denial of this right as lawful and necessary in the context of national security, based on...