A Super-Practical Question re Administrative Detention and Human Rights Law

by Kenneth Anderson

My congratulations to Professor Hakimi on a very intelligent article, with which I am largely in sympathy, and also to Matt Waxman for his response.  I’m on the fly, without access to documents or the ability to search the web, so forgive the broad brush nature of this comment and question, but let me put it anyway (I’m depending on memory of reading the article, as well as a couple of other things, so feel free to correct me where I have got things wrong):

I am generally sympathetic to the idea of some form of administrative detention regime – I have favored one as a matter of US domestic law, including a special national security court to consider both questions of detention and trial on statutorily determined terrorism crimes.  I believe that such a regime can be made consistent with the US’s interpretations of its human rights obligations.  I have long agreed with John Bellinger’s point that international law of armed conflict and international human rights law are much more flexible and capable of pragmatic response than as offered by NGO advocates.  The same interpretive freedom that the human rights advocates and monitors so much exercise in arriving at their policy conclusions is also available to a government seeking both to satisfy its obligations to human rights as to other obligations of government, such as the security of the population; pragmatism as well as Kantian purity is an interpretive option.

My difficulty with Professor Hakimi’s proposal is not so very much with its substance, but instead lies in a sort of public choice issue:  What I have suggested above frames the question of detention as one in which the US establishes such a system under its domestic law, somehow obtains constitutional clearance for it from the two political branches and the judiciary, and establishes to the satisfaction of the competent authorities within the US constitutional system that it has met its international law obligations.  But the crucial question is whether, instead, a system of administrative detention based substantively and in the first instance upon international human rights law, its fundamental grounding, invites a shift in what I have elsewhere called “who owns” international law.  Does determination of the system’s lawfulness depend upon US courts taking international law into interpretive account?  Or does it shift “ownership” of the determination and interpretation to international bodies, such as the UN Human Rights Council, special rapporteurs, tribunals of one kind or another, or NGOs, that have a completely different view of human rights obligations and which (in the sense of public choice analysis of the well-organized minority view as against the diffuse majority) are prepared to be relentlessly on-message in pressing theirs as the correct interpretation, forever and ever?  

One reason I ask is that the UN special rapporteur on terrorism and human rights, Martin Scheinin, issued a report in late 2007 in which he called upon the US, as a matter of its international human rights obligations, abandon the designation unlawful enemy combatants and that anyone – ie, everyone at Guantanamo – be either put on trial or else released (paragraph 55 of the recommendations, but I might recall badly).  In a discussion/debate with me on the release of the report at ASIL a year ago, he reiterated again and again that as a matter of human rights law, the only position could be ‘try within a reasonable period of time or release'; no concept of security administrative detention was allowed except for ongoing hostilities under the laws of war in the narrowest sense.  That represents the view of the UN human rights machinery, at least as far as human rights law applies to the US.  It is a view largely supported by the human rights NGO community, for whom the mantra remains largely ‘try-or-release’.  Indeed, for all these people, international human rights law is the mechanism by which to void anything that Congress, the Executive, and the US Supreme Court might otherwise bless in the way of administrative detention.  I found Professor Hakimi’s detailed examination of the complexity and nuance of the international human rights law of detention particularly fascinating because it was so thoroughly contradicted by the bulldozer approach that Professor Scheinin took toward similar questions.  

As I recall, the State Department had prepared a lengthy set of rebuttal points to the facile simplicity of try-or-release – starting with the question of where this simple mandate arises in human rights law except as what those who regard themselves as “owning” this body of law and its interpretation have concluded is the best on-going policy and assert it as law, a sort of blank check drawn upon the categorical imperative: I would be the last to deny the purity of ‘try-or-release’.  So far as I could tell, no substantive part of the State Department’s rather reasonable, lawyerly critique showed up in the final draft; I could not find any substantive changes at all, Professor Scheinin being nothing if not confident of his conclusions and, more exactly, confident of their reception among the audience that regards itself as the rightful owners of this body of law.  

My point is thus a blunt and political one, a public choice observation that I have expressed with, I’m afraid, crude terms.  Although I agree with most of what Professor Hakimi’s article argues as substantive law, by beginning substantively with human rights law one also politically shifts actors.  That shift carries one, it seems to me, not to Professor Hakimi’s intelligent and well argued claims, but, instead, to Professor Scheinin’s blunt edicts, the which are delivered, if one reads his report, bathed in a sort of toxic-acid faux-concern for the US and its struggles with terrorism even while removing the possibility of anything resembling a ‘pragmatic’ approach.

So my question for Professor Hakimi goes beyond the largely sensible positions argued in the paper, and instead says, okay, supposing we go there – go to human rights law as the ground.  Why, as a practical matter, are we not immediately in then hands of Professor Scheinin’s view, as the official view of the UN human rights apparatus, and supported by the NGOs, and piled on by some or another tribunal?  Would it not be better, if one accepts as I largely do, the substance of the conclusions, to instead do all this explicitly as a matter of US domestic law asserted by the several branches of government to be consistent with US obligations under human rights law, including the reservations (deliberately ignored by Professor Scheinin’s analysis and report) entered by the US?  Why offer, again in a public choice sense, ‘hold-up value’ to actors that have much purity but no one’s actual safety in their hands?

(Sorry to put this all very crudely, but it’s all I have to work with at the moment.)

http://opiniojuris.org/2008/11/24/a-super-practical-question-re-administrative-detention-and-human-rights-law/

3 Responses

  1. HA — the only real question here is what exactly do you suppose is practical or pragmatic about any of this nonsense?

    Especially when the entire thrust of your question is ideological and is based on nothing more substantial than your own personal contempt for IHL and its advocates.

    As for why Profs. Hakimi and Waxman want to use IHL, that is obvious: they need it to provide a veneer of legitimacy for the CRIMES AGAINST HUMANITY which they are advocating. The project isn’t to adapt IHL, it ‘s to subvert it for criminal purposes.

    The Nazis would’ve agreed with all of you whole-heartedly: Auschwitz was a very pragmatic solution to a set of very difficult practical problems after all. Indeed, so were the Inquisition and Salem witchcraft trials, which had precisely the same motivation as you all do, not that any of you are honest enough to admit it.

    YOU OUGHT TO BE ASHAMED OF YOURSELVES.

    As for domestic law, the Constitution forbids attainder and that’s all that any of this is in reality. The most galling thing to me is that you people can sit here pretending this is pragmatic and practical…

    On what evidence exactly?

    None whatever. Eight years of the Bush administration’s lies, crimes, subversion, and bumbling incompetence?

    How preposterous. And why would anyone suppose we need new laws when the Bush gang has claimed from the very beginning that the President of the United States is entirely beyond the law (a claim explicitly stated by Yoo’s 2001.09.25 OLC memo on presidential war powers)?

    Those are the real questions here Ken, and it’s time for you folks to start answering them. There isn’t anything complicated going on here at all: you’re just WRONG. There are 6.5 billion people on the planet, and every single one of them is a threat to you, including yourself, who is undoubtedly the worst threat of all. You have more risk of being randomly murdered or dying in a car crash than you do of being killed by a terrorist, yet you want to throw away 2,500 years of law on the theory that Joe Stalin and Adolf Hitler actually had the right idea.

    I just don’t have words to describe how absolutely foolish and deluded you people are – and you know what the worst part of it is?

    You folks are the most deadly weapons the terrorists have, and that’s a literal fact.

  2. Professor Anderson,

    That’s an excellent set of questions. 

    I do not think the legality of a system of administrative detention in the United States would turn on whether U.S. courts take international law into interpretive account.  U.S. courts almost never look to international law when protecting human/civil rights, but the U.S. legal system is largely consistent with international human rights standards. 

    The more difficult question is the ownership one.  I agree with you that some human rights actors reject outright any system of administrative detention.  One goal of my article is to try to persuade them to move beyond their (in my view, ill-founded) position that human rights law requires states to try or release non-battlefield suspects.  I suspect that I will not always succeed. 

    Even if some human rights actors continue to take the try-or-release approach, however, I do think it is important for other actors–and, particularly, for states with different but well-founded legal positions–to participate in the human rights conversation.  I think this is important not only for states seeking to implement their human rights obligations consistent with other (e.g., security) concerns, but also for the human rights system itself.  A system that is detached from state practice and that fails to accommodate genuine efforts to satisfy competing concerns is not, in my view, a sustainable one.

    In short, I believe it is important to have the human rights conversation, even though it likely will be difficult and will not result in a single, shared interpretation.

    Monica Hakimi

  3. Well founded legal position??

    You’re saying it’s OK to imprison people for life whenever there isn’t any lawful basis for such imprisonment. There isn’t anything legal about that — it’s a perversion that reduces all law to a sham, on the theory that the only way to effectively fight terrorism is to practice it yourself.

    The US Constitution prohibits attainder, and that’s ALL you are advocating here.

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