Reponse by Professor Matthew Waxman, “International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide.”

I thank YJIL and Opinio Juris for the opportunity to comment on Monica Hakimi’s article, “International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide.” Monica’s important paper will contribute to a raging debate likely to grow more intense as President-elect Obama moves to shut down Guantanamo and put U.S. detention policy on sounder legal footing.

One of its contributions to the detention law debate is methodological, and especially its focus on state practice. The article’s analysis faces familiar methodological challenges of measuring and assessing state practice – what exactly should we look to in determining the strength of opinio juris, when is state practice law-breaking rather than law-making, etc.—but its effort to look beyond broad pronouncements and investigate state behavior casts doubt on claims that international law is settled and clear with respect to administrative detention for security purposes.

Another contribution is in reframing a bipolarized debate – law of war versus criminal law – into a tripolar one, adding administrative detention, though here I think the point should be taken further. Monica states that the administrative detention model is underdeveloped and proposes some substantive and procedural standards to help fill it in. But I wonder whether administrative detention is so underdeveloped, or so expansive a concept, that it doesn’t make sense to think of it as a single model at all.

Consider the many dimensions along which administrative terrorist detention proposals or examples vary: robust judicial review versus deference to military judgments; short-term versus long-term; one-time challenge versus periodic review; regular civilian judges versus special courts or military panels; right to counsel of choice versus special advocates; full discovery versus secrecy provisions. While it is tempting to think of administrative detention as lying between the criminal and law-of-war models, depending on how these matters are resolved, an administrative system can be even less liberty-protective than traditional battlefield hearings or more liberty-protective than criminal prosecution (a point Monica makes on p. 409). And these are just variations of procedural or institutional design.

I’d like to hear more discussion about substantive questions of administrative detention law. Monica is quite right when she says:

The availability of meaningful legal process is critical because, unlike traditional combatants, terrorists operate by blending into the general population, and any counterterrorism detention regime thus is likely to target a relatively high number of innocents—persons who are suspected of posing a threat but in fact do not (p. 408).

How protective is even the most robust legal process, though, if substantive constraints are defined loosely? Take proof burdens: how strong a case must the government establish? Judicial review and fully-assisted adversarial process won’t solve the false positive problem if the state need only establish its case by, say, preponderance of evidence. Or take the substantive grounds upon which administrative detention may be justified. Even requiring proof beyond reasonable doubt is little protection to innocents or those unlikely to actually commit terrorism if the substantive criteria for detention are defined very broadly (e.g. for “state security” or “supporting terrorism”), much as very expansive material support criminal liability could net many individuals who aren’t very threatening or morally culpable.

I’ve tried to analyze the standard of proof issue here, looking to the law of targeting as a framework from which to draw standards. I’ve also tried to analyze the questions of “why detain?” and “detain whom?” here, arguing that the answers to those questions are at least as determinative of security-liberty balances and consequences as are choices of procedural or institutional design.

Implicit in Monica’s analysis is a similar conclusion. Taking up her challenge to develop coherent standards, I hope to see more discussion of substantive issues such as for what specific purpose might administrative detention be legitimate or illegitimate, and, accordingly, by what substantive criteria should individual detention decisions be judged.

To some these may seem like easy questions: administrative detention is to prevent terrorism, so detain those likely to commit terrorism—duh. Not so fast, though. Monica explains that “[l]ike detention under the law of armed conflict, administrative detention is preventative. Its focus is on incapacitating persons who pose a future security threat….” (p. 388). But detention could be thought to serve the goals of prevention in a number of ways, including putting out of action those believed to be highly dangerous, incapacitating (or deterring) those who—while perhaps not directly participating in plots—indirectly support or facilitate terrorism, disrupting imminent attacks, or facilitating the interrogation of those likely to have information about terrorist planning. And depending on the specific purpose, administrative detention decisions might be based on prior terrorist behavior, expressions of future intent, suspected involvement in specific plots, indications of knowledge, etc. Some of these options seem less legitimate and more prone to error, abuse or overuse than others. As I’ve tried to argue here, just as the merits or dangers of administrative detention schemes depend on their specific procedural characteristics, so too do they depend on the substantive choices or how broadly or narrowly these substantive nets are cast.

I began by noting that Obama’s intentions to close Guantanamo will ignite further debate about the appropriateness of administrative detention, since that will be one option – among a range of all difficult ones – for getting there (see here). As Monica’s paper shows, it would be incorrect to cast this as a debate about whether to cross the administrative detention rubicon. That threshold has been crossed already, by some coalition partners and (though not addressed in Monica’s paper) in other domestic legal contexts. The issue is whether to expand its use, and if so not just according to what procedural constraints but what substantive constraints – recognizing that any new administrative detention expansions to deal with national security threats are especially prone to manipulation and overuse and likely to be viewed as discriminatory by communities whose trust we need to earn. If Monica is right, that some administrative terrorist detention schemes are legally viable, this still leaves open an enormous strategic policy question with potentially dire consequences on both sides.