Terrorism and Preventive Detention

By JOANNE MARINER

Wednesday, Jan. 16, 2008

Since the September 11 terrorist attacks, pressure to combat terrorism effectively, speedily, and decisively has warped--or even rendered unrecognizable--basic legal rules and institutions. Suspects taken into U.S. custody have, in some instances, been "disappeared" and tortured rather than arrested, investigated, and prosecuted.

Hundreds of others have been held in indefinite detention at Guantanamo, without explicit congressional or judicial authorization. Ad hoc military commission proceedings have, for some of these people, replaced fair trials.

Even some of the proposed remedies for these abuses are worrying. The alternative of preventive (administrative) detention, recommended by some commentators as the best way to deal with terrorist suspects--or, more modestly, as a means of closing Guantanamo without releasing dangerous men--is of particular concern.

Defendants, Enemy Combatants, and Detainees

Let's quickly run through the possible legal methods for handling suspected terrorists (leaving out disappearance and other methods that have nothing to do with the law). There is the option of prosecution (either in regular courts, in specialized courts, in courts-martial or in military commissions). There is detention as an enemy combatant, prisoner of war, security internee, or in another category whose purported justification is found in the laws of war. And there is the preventive detention option, which does not currently exist under U.S. law.

Now, in assessing the various alternative approaches, let's ignore their labels, and even put aside their theoretical frameworks (backward-looking vs. forward-looking, wartime vs. peacetime, etc.). Let's simply examine what, concretely and specifically, each approach offers in terms of the process by which detention decisions are made.

Criminal prosecutions, whatever the court, have certain common characteristics. First, the burden is on the government to prove guilt, and guilt must be shown beyond a reasonable doubt. Second, while rules of evidence vary from court to court, in general the evidence relied upon by the prosecution must be disclosed to the defendant: convictions cannot be based on secret evidence. And third, the assistance of counsel must be allowed.

So-called enemy combatants held at Guantanamo (like security internees held in Iraq) have a very different--and quite inferior--set of procedural rights. First, the Combatant Status Review Tribunal proceedings, or CSRTs, held at Guantanamo effectively place the burden of proof on the detainee. Second, secret evidence is not just allowed; it plays a determinative role in all of the proceedings.

Third, although detainees at Guantanamo now have access to legal counsel for proceedings in federal court, lawyers are not allowed to represent detainees at CSRT proceedings. (Moreover, most detainees had not yet seen their lawyers at the time they underwent their first round of CSRTs.)

Detention Based on a "Reasonable Belief"

So where does preventive detention fit on this scale of procedural rights? Obviously, it varies according to the specific detention scheme at issue, and most commentators who have recommended the option have not fleshed out their proposals in any great detail.

Yet it's possible to sketch out a basic outline of the option based on how it has been used in other countries, and also judging by the objections that proponents of preventive detention have made to the option of a criminal trial. (Presumably any preventive detention proposal would not include the criminal justice guarantees that they have singled out as problematic.)

First, a clear difference from the CSRT system is that most proponents of preventive detention are willing to accept that detainees be granted the assistance of counsel. While there may be varying views as to when this right would attach--many proponents would permit an initial interrogation period during which a detainee's lawyer is barred--the right to counsel during the actual adjudicative proceedings seems secure.

Second, a clear difference from the criminal justice system lies in the standard of proof. Preventive detention, almost by definition, implies a standard of proof short of "beyond a reasonable doubt." In large part, this is a basic consequence of preventive detention's forward-looking character. No one has an accurate crystal ball, and without one it is difficult to prove anyone's future behavior beyond a reasonable doubt. The past is stable; the future is always contingent.

Reflecting this (but also evidencing the distressing lack of certainty associated with preventive detention), standards of proof in preventive detention proceedings tend to be low. In the U.K., for example, the preventive detention scheme introduced in the 2001 counterterrorism law, passed after the September 11 attacks, allowed the Home Secretary to order a person's detention if he had a "reasonable belief" that the person was a threat to national security and a "suspicion" that the person was an international terrorist or had links with an international terrorist group.

"Reasonable belief," a standard that is effectively synonymous with probable cause, is only sufficient under normal criminal justice rules to support an arrest, not to justify indefinite detention for years.

Finally, although other procedural safeguards may vary as well, a key distinction between preventive detention schemes and the criminal justice model is in the rules of evidence. The rules are typically much looser under the preventive detention model, and, of greatest concern, secret evidence may be used. The crucial problem is that defendants cannot meaningfully challenge evidence that they are not allowed to see.

Detention Based on Thin and Unreliable Evidence

In an op-ed published in the New York Times last Sunday, former New Jersey Attorney General John Farmer criticized the prosecution of Jose Padilla, suggesting that the case demonstrated how relying on the criminal justice system to handle terrorist suspects threatens to stretch the system beyond its limits.

His sense of the intense pressures attending high-profile terrorism cases may be correct. But his solution--to switch to preventive detention--does not remedy any of the unfairness that he perceived in Padilla's treatment.

As he describes it, Padilla was prosecuted on a vague charge, and only a smidgen of evidence. But if the system failed (if it was unjust to hold Padilla on this basis), why would changing the label applied to the system--calling it preventive detention and not a criminal trial--magically make it alright?

It may be true that unlike the criminal justice system, preventive detention schemes don't need to be stretched in order to detain people unjustly. But whether they call it preventive detention, or an unfair trial, or Guantanamo plus, the problem is essentially the same.


Joanne Mariner is a human rights attorney. Her previous columns on the detainee cases and the "war on terrorism" are available in FindLaw's archive.

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