Ken’s Question on Administrative Detention and Human Rights

With apologies for arriving late to the helpful Hakimi-Waxman-Anderson exchange, I thought it worth noting the apparent consensus on at least one position I, too, share: there is no categorical international law prohibition on “administrative” (or otherwise non-criminal) detention. Indeed, at risk of repeating myself, I’m not sure I could name a human rights or humanitarian law scholar I know who thinks otherwise (though it’s entirely possible I just don’t get around enough).

My guess is that Ken may be conflating positions folks have taken on the unique catastrophe that is Guantanamo circa 2008, with the rather different question of, were we starting from scratch, what kind of detention system could we (and should we) lawfully arrange to handle terrorist suspects going forward. The former question, as I’m sure Ken understands, is inescapably tied up in all the wrong that has been done in and around Guantanamo already. And while I don’t share the view of some in the human rights community that charge or release are the only lawful options remaining for all of the Guantanamo detainees, I can well understand where that view comes from. We denied these detainees even the most basic Article 5 tribunals when they were initially seized. We waited far too long and far to far from any meaningful information about the circumstances of their capture to hold what semblance of “status hearings” there were. We tortured some of them. The list goes on. As a result, there are no good outcomes possible at Guantanamo. Only less bad ones. As among less bad options, the charge-or-release approach is hardly an outlier position.

Which brings me to the other point of agreement we all seem to have: that Guantanamo notwithstanding, the harder question with respect to “administrative” detention going forward is a question of policy. In my own forthcoming response to Professor Hakimi’s thoughtful article, I have a go at some of these policy questions. Given the strategic security downsides of the United States pursuing such a new regime, I end up remaining unpersuaded it’s the way to go. That said, I’d be most interested in Monica, Ken, or Matt’s views on a few of the questions I’ve found hardest here. For example, outside the traditional armed conflict setting, under what circumstances should a putative terrorist detained “preventively” on grounds of dangerousness ever be released?