The Ten Principles of Detention

by Roger Alford

Today’s discussion of Ben’s book focuses on what kind of detention law we should have going forward. Given that I am in Israel now I thought it might be useful to offer a comparative example. Such a comparison is particularly useful when proposed legislation is under consideration and another country has similar terrorist threats.

The Israeli Supreme Court has just ruled on the lawfulness of the Israeli Internment of Unlawful Combatants Law in the case of Anonymous v. State of Israel. Here are the ten principles of detention as articulated by the Israeli Supreme Court that I think are relevant for consideration of any future U.S. detention law.

First, the purpose of any detention law should be to address the terrorist threat. Only persons who take part in the cycle of hostilities or who belong to a force that carries out hostilities against the state should be subject to the detention law. ¶ 6.

Second, the law should be drafted and interpreted consistent with international humanitarian law. This presumes that a state of armed conflict prevails in the war on terror. ¶¶ 7, 9.

Third, the law should apply to foreigners who are unlawful combatants. This means the person in question does not enjoy prisoner of war status and is not a citizen or resident of the state. Unlawful combatants do not enjoy the same rights as lawful combatants. ¶¶ 12-14.

Fourth, a person may only be detained if he poses an individual threat to the security of the state. That threat may arise either because the person took part in the hostilities against the state or because he is a member of a force carrying out hostilities against the state. ¶¶ 15-19.

Fifth, clear and convincing evidence must be provided that the person took part, directly or indirectly, in the hostilities or belonged to a terrorist organization. ¶¶ 22-23.

Sixth, detention may be entrusted to military personnel and those personnel may detain the person before the detainee has an opportunity to present his arguments. ¶¶ 38-39.

Seventh, detentions should be subject to judicial review, which includes an initial hearing within 14 days of detention and subsequent hearings every six months. ¶¶ 40-42.

Eighth, evidence establishing grounds for detention can be heard ex parte without the detainees and his counsel present and without disclosing it them. Judicial review must carefully examine the quality and quantity of the evidence that supports the ground for detention as a safeguard to such ex parte evidence. ¶ 43.

Ninth, the person must have the right to meet with a lawyer at the earliest possible opportunity, but no later than seven days before he is brought before a judge for review. ¶¶ 44-45.

Tenth, detention need not include a defined date for the end of detention. The detention may not exceed the period of hostilities. In addition, consistent with international law, each case must be considered on its own merit according to specific circumstances to determine whether the person poses a continuing threat to the security of the state. Periodic review of the detention every six months should assist in this determination. ¶ 46.

As the Israeli Supreme Court summarized it, “the law does not allow the detention of innocent persons who have no real connection with the cycle of hostilities of the terror organizations, and it provides mechanisms whose purpose is to reduce the violation of the detainees’ rights, including a ground for detention that is based on a threat to state security and the holding of a hearing and initial and periodic judicial review of detention under the law.” ¶ 49.

So there you have it, the ten principles of detention as outlined by the Israeli Supreme Court. I would be curious whether Ben or others think this model would work in the United States.

7 Responses

  1. Please no more improvisation in the detention of human beings.

  2. I’m not sure what you mean.  Please clarify. 

  3. I don’t think it will work in Israel either. You can’t observe IHL by violating it, and citizenship has no bearing here: everyone has the same right to liberty and a fair trial when accused of a crime, period.

  4. The reason we are discussing National Security Courts and new detention regimes is because seven years ago the error was made to have a policy of cruelty and subvert the domestic and international legal regimes in place.  New detention regimes appear to me to be post-hoc efforts to ratify aspects of what has been done in the policy of cruelty – a legitimizing action.  We should resist that effort to legitimize.

    The domestic law structure developed will have little relation to international law obligations simply because of the Congressional and Judicial (should I mention the national security law crowd that appear very dominant in decisionmaking circles) blindspots on applicable treaty and customary international law.  We do not have to remake the wheel on this subject.

    The idea of secret incommunicado detention by the state is anathema to anyone thinking of fundamental human rights. 

    There are dangerous people – charge them with crimes, give them a fair hearing and send them to jail if they are convicted.

    There are private parties who want to do war (I have sent to this space before the quote of Grotius on private parties making war on princes that brings the Al-Qaeda type problem back as a problem that was also faced by the Romans – all this may be new to us but there is nothing new here under the sun).

    Detention regimes are thinly veiled efforts to essentially charge people with thought-crimes.  It is ok to think and it is ok to dissent – let the marketplace of ideas make the battle and not state intervention to chill dissent.  We have seen the space we are looking at between dissent, thought-crime (now trying to be assimilated to crimes), and real crime in the recent Toledo terrorism case (at least as to some of the persons) and Padilla (his entering the states may have been enough to move towards the crime aspect – I have more problems with the manner of his torture).

    As to holding persons indefinitely until the end of hostilities, it seems to me that every state has the power to determine when someone does not appear to be a threat any more in an ongoing conflict.  And that state then lets them go home.  The more years someone is held, the more pressure on the state to justify why it continues to hold them.  That discussion in front of a national court appears to be the very simple way to address the endpoint part of this.  That is what habeas with right of release review can provide.  As to the beginning point problem, vacuum cleaner arrest and detention is repugnant to basic notions of human rights – we come back to the dissent, thought crime, and crime conundrum above.  Are we at a point where we are trying to enshrine thought crimes in our law?

    Further, Congress and the Executive have demonstrated they are too fearful of being seen as soft on terrorism to do anything but create separate and unequal third class processes (separate and unequal third class processes as compared to courts or court-martial procedures in settings where the exigencies (battlefield, occupation space, or no courts open) do not make necessary the traditional role of military commissions). 

    Some people think that separate and unequal third class processes are OK for foreigners (the citizen/non-citizen distinction in the United States is particularly pronounced as I saw at the Committee on the Elimination of Racial Discrimination hearings on the US periodic report in February 2008).  I think we always start to run into national treatment and international minimum due process concerns with a third class system tailored for foreigners.  Whether or not their country of citizenship/nationality asserts diplomatic protection should not be the test on whether someone is treated consistent with an international minimum due process standard.

    Yes – many of these folks look different and may seem wild and have lots of beefs against the United States and are not necessarily people I would want to be my friends.  Many of them are killers.  But being a killer does not make one a nonhuman.  I insist that we respect our human dignity by respecting their human dignity – it’s a fundamental point.  They have a will to survive and a will to dignity too and in our rush to make them persons in hermetically sealed mechanisms that keep them out of our sight, we should pause to see what this is doing to them and what this is doing to us.

    The domestic law Israeli position is 1) domestic law, and 2) a sui generis approach to a sui generis situation.  Whatever the Israeli Supreme Court says, as we look at these administrative detentions we have to be very careful that we are not destroying human dignity in our fear of the other. I know the battle between survival and dignity – I am not naive.

    As to preventive detention in the United States, we have it in many ways in the criminal system already (no bail for example) but the entry point is higher than the proponents of administrative detention want. 

    As a person who is a dissenter on many things, I do not like the entry point for detention being lowered – I probably commit thoughts of dissent that some people would think are thought crimes all the time.  I remember carrying an “indict Bush war crimes” placard I had created at a Bush campaign speech in August 2004 and I was treated as a pariah by the Republicans and the Democrats.  I could see myself being put into administrative detention because I was perceived as a threat.  Do not think that such a detention regime might not come back some day and detain one of you.  You are naive if you think the state can not evolve that way.


  5. There’s nothing unique about the Israeli law, unless making a good faith effort to comply with International Humanitarian Law is unique.  It’s simply a domestic codification of the basic rules for detaining civilians who pose a security threat under Geneva IV.  Of course it will work in Israel since it is soundly grounded in international law, and it could have worked here IF only the lawyers who worked the law after 9/11 had known anything at all about the law of war.  Heck, Geneva IV even authorizes incomunicado detention where considered necessary for the security of the state. 

    Now if only the Israeli government read the part of Geneva IV which forbids settling members of one’s population in occupied territory . . .   But at least they’ve read large parts of Geneva IV, unlike some members of the Bush Administration who literally didn’t even know of its existence in the days after 9/11 . . .

  6. I’m not suggesting it’s unique but it does offer a useful basis for comparison that strikes a compromise between the two camps in the United States.  Apply IHL, but treat unlawful combatants differently from lawful combatants.  Include judicial review, but allow ex parte evidence.  Permit indefinite detention, but impose an obligation of individualized threat.  All of those are worthwhile contributions that seem to me at least to take a middle course. 

  7. Those who wish to see what law is discussed in Anonymous v. State of Israel, see here.

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