24 Nov A Super-Practical Question re Administrative Detention and Human Rights Law
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.)