The Ten Principles of Detention
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.