Try or Release

Thanks to Deborah for that thoughtful response re the administrative detention debate ongoing now … but I don’t think I agree, at least as to the idea that administrative detention has been considered an acceptable policy response among the human rights advocates and civil libertarians.  I should look and see whether ASIL posted video or a transcript of the Tillar House discussion in late 2007 between Professor Scheinin and me, but clearly I needed Deborah there to defend me.  It was a full house, with lots of aggressive and hostile journalists and lawyers and human rights and civil libertarians, and they were not there to entertain the possibility of administrative detention.  

Professor Scheinin said repeatedly and without qualification that administrative detention on security grounds that might conceivably go on permanently or for a long time – meaning, as long as it had gone on to date at Guantanamo – was a violation of human rights and impermissible.  There was no qualification to it, and he was repeatedly asked about this by an audience that obviously fully supported his view and was polite, but just that, when I suggested the possibility that administrative detention, with, for example, regular hearings to determine whether the person continued to pose an unacceptable risk to the public, was in fact okay if Congress and the President signed it into law.  I was told specifically by several people, and endorsed by Professor Scheinin, that the US could pass whatever legislation it liked, but it would still be a violation of international human rights and the ICCPR in particular.  The only course of action acceptable under international human rights standards, said the UN special rapporteur on human rights and terrorism in the course of releasing his official findings on the United States, was to charge and try them in a reasonable time or let them go.

Moreover, in his view, even the conflict in Afghanistan had ended with the fall of the Taliban government and, despite my observation about the on-going, continuous fighting and extensive combat, it was therefore no longer an armed conflict entitling the United States to hold people under the laws of war – and still no response when I pointed out that not even the ICRC took that view.  No one from Human Rights Watch or any other group raised a hand to suggest otherwise in the Q&A.  So, alas, I persist in thinking that some people are engaged in walk-backs from the positions they held earlier when they were arguing with the Bush administration.  I think that is true of the New York Times front page, as I noted earlier; likewise the LA Times more recently.  Although not Professor Scheinin, so far as I am aware.

Here, by the way, is how the AP characterized Professor Schenin’s report, under the headline … Try or Release (via Commondreams).  And here are two summary paragraphs from the full report:

Chapter I of this report considers the role of the United States in countering terrorism, concluding that it has a special responsibility in the protection of human rights while countering terrorism. The Special Rapporteur identifies his visit to the United States as one step in the process of restoring its role as a positive example for respecting human rights, even in the context of the fight against terrorism. He also strongly encourages the United States to take a strong role in and give support for the United Nations led effort in countering terrorism and implementing the United Nations Global Counter-Terrorism Strategy. The Special Rapporteur concludes that the international fight against terrorism is not a “war” in the true sense of the word, and reminds the United States that even during an armed conflict triggering the application of international humanitarian law, international human rights law continues to apply. He reiterates that international human rights law is also binding upon a State in respect of any person subject to its jurisdiction, even when it acts outside its territory. 

 Military detention facilities are considered in Chapter II. In the context of detainees at Guantánamo Bay, the Special Rapporteur concludes that the categorization of detainees as “unlawful enemy combatants” is a term of convenience without legal effect. He expresses grave concern about the inability of detainees to seek full judicial review of determinations as to their combatant status, which amounts to non-compliance with the International Covenant on Civil and Political Rights’ prohibitions against arbitrary detention, the right to judicial review capable of ordering release, and the right to a fair trial within a reasonable time. Noted also is the purported exclusion of habeas corpus rights under the Military Commissions Act of 2006. He urges continued and determined action towards the expressed wish of the United States to move towards closure of Guantánamo Bay. The Special Rapporteur also reminds the United States and other States responsible for the detention of persons in Afghanistan and Iraq that these detainees also have the right to a fair trial within a reasonable time if suspected of a crime or, failing this, to release. 

So … in the view of the special rapporteur, the Guantanamo detainees have been held merely under a “term of convenience” – unlawful enemy combatants – and the failure to offer “full judicial review” and other things constitute “non-compliance” with the ICCPR (and in any case deliberately refusing to take into account the US view that it does not apply extraterritorially).  Moreover, he takes this view even with respect to detainees held in Afghanistan and Iraq and says that they too have a right to fair trial or release, irrespective, seemingly, of the status of an armed conflict underway.  

I do not see how these views can be squared with administrative detention on security grounds – it seems doubtful that they can be squared with long term detention even in armed conflict, a result Professor Scheinin reaches through the wide open door, long deployed by human rights organizations, of declaring that human rights law applies alongside of IHL.  

But again: Professor Scheinin wrote this in his official UN capacity.  It was a report widely reported and widely accepted, and widely understood, to mean precisely what he said it meant: try or release.  I am not aware of any human rights organization or civil liberties organization saying at the time that it went too far, or that it did not express a correct view, or least of all, contrary to this report’s view, that some form of security based administrative detention was, in fact, legal and acceptable.  If anyone said this outside the precincts of Ben Wittes, or Jack Goldsmith, or me, or a relatively modest handful of people, I would be interested to find out about it.  But I don’t think very many people, if anyone, said this from the human rights or civil liberties standpoint, for the good and admirable reason that they didn’t actually believe it.  And I guess I do have to wonder what Elisa Massimino thinks in her heart of hearts about all this.