INDEFINITE DETENTION OF TERRORIST SUSPECTS

In Part Two of a two-part series on the Guantanamo detainees, FindLaw columnist Joanne Mariner reviews other countries' experiences with administrative detention, and assesses the legality of the practice under international standards. Part One discussed the Bush administration's justifications for holding detainees for an indefinite period without bringing criminal charges against them. - Ed.

Months have now passed since the Pentagon transferred 384 detainees from Afghanistan to the U.S. Naval Base on Guantanamo Bay, Cuba. While describing the detainees as "illegal combatants" and suspected terrorists, Pentagon spokesmen have released virtually no factual information about them.

What little information is available has been made public by the detainees' lawyers, who claim that at least some of the men held on Guantanamo are innocent aid workers. The lawyers have released letters and other documents that suggest that the detainees went to Afghanistan to do charitable work, not to wage a jihad on the United States.

Pentagon officials contacted by The Washington Post, acknowledging that some of the men may fit this profile, have said that such detainees will be released if investigators determine that they have done nothing wrong. "We're trying to differentiate who's who," said one source, noting the difficulty of distinguishing "charitable types" from the "bad guys."

From a human rights perspective, it would be a welcome step forward if innocent detainees were released soon. Yet even if this were to happen, the Pentagon's continuing imprisonment of the remaining detainees would raise serious concerns.

Administrative Detention

While those detainees shown to be innocent may be released, it is still unclear how the remaining detainees will be handled. Secretary of Defense Donald H. Rumsfeld, outlining the possible options that the government is considering, has stated that some of the detainees may be held indefinitely without trial.

The United States currently uses indefinite detention without trial - known variously as internment, civil commitment, preventive detention, or administrative detention - to hold people who fall within a few narrow categories, including the mentally ill, and "sexually violent predators." During the Second World War, to cite a more worrying precedent, the country administratively detained over 100,000 civilians of Japanese origin.

Unlike imprisonment on conviction of a crime, administrative detention is a forward-looking mechanism. While criminal proceedings have a retrospective focus - they seek to determine whether a defendant committed an offense in the past - the reasoning behind administrative detention is that the suspect is likely to pose a threat in the future. It is meant to be preventive in nature rather than punitive.

The Israeli Example

Israel offers a useful case study in reliance on administrative detention. It detained thousands of Palestinians without charges during the first Intifada, which lasted from 1987 to 1993. Most were held for no more than a few months, but some were held for years.

After the end of the Intifada, the numbers of administrative detainees dropped, falling to about 200 in 1998. Most notoriously, a number of Lebanese captives were held as "bargaining chips" in order to secure the release of Israeli soldiers missing in Lebanon.

For the first 30 years of Israel's existence, provisions of the British Mandatory Law, a relic of colonial rule, provided the legal basis for the practice of administrative detention. In 1979, the Israeli government passed a new law to regulate the practice. Among other changes, the law contained improved procedures for the judicial review of detention orders. It continued to permit long-term detention, however, allowing the Minister of Defense to order detention for six-month periods, extendable indefinitely.

Israel's Illegal Combatants Law

A recently-adopted Israeli law, called the "Imprisonment of Illegal Combatants Law," offers an even closer parallel to the proposed American approach. The new law allows the detention of anyone if there is a basis to assume that he or she "takes part in hostile activity against Israel, directly or indirectly" or "belongs to a force engaged in hostile activity against the State of Israel." All detainees held under this law are assumed to be a security threat and can be held without charge or trial as long as hostilities against Israel continue.

The law was passed in response to the Israeli Supreme Court's April 2000 ruling that the indefinite detention of Lebanese captives as "bargaining chips" could not be justified under the country's administrative detention law. In the immediate wake of the court's decision, a draft version of the bill was introduced in the Knesset, but it stalled after coming under intense local and international criticism.

In February 2002, shortly after the United States made public its views on the status of the Guantanamo detainees, the illegal combatants law was reintroduced in the Knesset; it passed in March.

Other Precedents

Malaysia and Singapore have similar laws, both titled the Internal Security Act, that allow for administrative detention of certain suspects. Britain, too, has relied on administrative detention in responding to Irish separatist violence.

International Legal Rules

Article 9 of the International Covenant on Civil and Political Rights (ICCPR) prohibits arbitrary detention, and requires that any deprivation of liberty be based on grounds and be regulated by procedures established by law. In narrow circumstances, if there is a public emergency threatening the life of a nation, a government may derogate from its obligation not to engage in arbitrary detention. (The United States, which is bound by the ICCPR, has not claimed that such circumstances exist.)

While the ICCPR contains detailed rules as to criminal procedure - protecting, for example, the presumption of innocence - its rules relating to administrative detention are much less elaborate. In other words, the question of whether a given deprivation of liberty is arbitrary is harder to assess with regard to administrative detainees than it is with regard to normal criminal defendants.

The U.N.'s Working Group on Arbitrary Detention has, however, established a few useful guidelines relating to arbitrary detention. The Working Group has concluded, for example, that deprivations of liberty that violate the freedom of association must be deemed arbitrary.

Consequently, the Working Group has condemned Israel's use of long-term administrative detention in a number of cases, finding that detainees were held for the mere fact of belonging to an "illegal organization." It has issued similar decisions regarding detainees held in Egypt and Saudi Arabia, among others.

Presumption of Guilt?

Legal commentator Stuart Taylor recently published a piece advocating reliance on administrative detention in dealing with suspected terrorists on Guantanamo. His argument, which essentially develops ideas introduced by Bush administration spokesmen, is that absent such a detention regime we might end up releasing people who would pose a serious threat to American lives.

But on closer analysis Taylor's reasoning is bizarre and self-contradictory. Acknowledging that there is little individualized evidence to support the prosecution of Guantanamo detainees for war crimes or terrorist acts, Taylor asserts that convictions based on such slim evidence might rightly be criticized, in Europe and elsewhere. He notes, in addition, that it would be hard to justify long prison terms in such cases.

The distinction between punishment and prevention, at the crux of Taylor's argument, provides him little support. Not only is the prevention of future crimes - via the incapacitation of the convicted criminal - a central justification for the criminal law penalty of imprisonment, but it is primarily through an assessment of someone's past acts that the courts are able to make any reliable prediction of his or her future proclivities.

Taylor suggests that membership in al Qaeda, while a weak basis for a conspiracy prosecution, provides strong grounds for administrative detention. This is only true, however, if in mandating administrative detention one turns the presumption of innocence on its head. Otherwise, how can slim evidence of past crimes be transmogrified into compelling evidence of future ones? (Indeed, it seems much easier to ascertain whether someone has committed a criminal offense in the past than to be able to forecast, with reasonable certainty, that he or she will commit a criminal offense in the future.)

Stripped to its essence, the administrative detention of suspected terrorists is a form of collective punishment. By doing away with the criminal law requirement of the individualized proof, it attributes to all members of a group what some have done.

Yes, the practice is common elsewhere. Yet the United States, a country that prides itself on protecting rights and upholding the rule of law, can hardly seek refuge in other countries' abuses.