Try or Release

by Kenneth Anderson

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.

http://opiniojuris.org/2008/11/26/try-or-release/

5 Responses

  1. “(and in any case deliberately refusing to take into account the US view that it does not apply extraterritorially).”

    I was wondering whether this is the US view or the view of the current administration.  I remember the discussions about how – is it “territory and control”? – are to be read.  I do believe there is a well-respected view that the ICCPR applies extraterritorially.  Maybe not in the kind of memos we have gotten out of the current Administration – but I have seen the point discussed at length in many places.

    As to ”unlawful enemy combatant”, I can see that it has little content as a term for someone because (1) it has been used to denature GC III and IV categories (2) and sweep up anyone at least until Judge Leon and others tried to give some content to it.  That stuff is after your debate.

    Best,
    Ben 

  2. “(and in any case deliberately refusing to take into account the US view that it does not apply extraterritorially).”

    I was wondering whether this is the US view or the view of the current administration.  I remember the discussions about how – is it “territory and control”? – are to be read.  I do believe there is a well-respected view that the ICCPR applies extraterritorially.  Maybe not in the kind of memos we have gotten out of the current Administration – but I have seen the point discussed at length in many places.

    As to ”unlawful enemy combatant”, I can see that it has little content as a term for someone because (1) it has been used to denature GC III and IV categories (2) and sweep up anyone at least until Judge Leon and others tried to give some content to it.  That stuff is after your debate.

    Best,
    Ben 

  3. “(and in any case deliberately refusing to take into account the US view that it does not apply extraterritorially).”

    I was wondering whether this is the US view or the view of the current administration.  I remember the discussions about how – is it “territory and control”? – are to be read.  I do believe there is a well-respected view that the ICCPR applies extraterritorially.  Maybe not in the kind of memos we have gotten out of the current Administration – but I have seen the point discussed at length in many places.

    As to ”unlawful enemy combatant”, I can see that it has little content as a term for someone because (1) it has been used to denature GC III and IV categories (2) and sweep up anyone at least until Judge Leon and others tried to give some content to it.  That stuff is after your debate.

    Best,
    Ben 

  4. Well my position on this has been consistent all along: you’ve got Hague IV (1907), the IMT Charter (1945), Geneva III & IV (1949), the US Code, and the U.S. Constitution.

    If you think there’s some lawful basis for “administrative detention” all you have to do is…

    1) Show me what it is.

    2) Tell me exactly why you think it’s OK to imprison suspected terrorists indefinitely without a fair trial, but not suspected murderers, bank-robbers, rapists, witches, or Jews.

    3) Explain why your proposed scheme of “administrative detention” isn’t a de facto bill of attainder within the meaning Art. I sec. 9 cl. 3 of the US Constitution.

    As for Goldsmith’s vile little op-ed, it’s precisely on topic as far as I am concerned. Quoth he:

    “But we should also recognize the costs of these investigations. Second-guessing lawyers’ wartime decisions under threat of criminal and ethical sanctions may sound like a good idea to those who believe those lawyers went too far in the fearful days after Sept. 11, 2001. But the greater danger now is that lawyers will become excessively cautious in giving advice and will substitute predictions of political palatability for careful legal judgment.”

    Translation: if we prosecute them for their crimes we might inhibit them from committing crimes in the future, and Mr. Goldsmith thinks obeying the law is just a matter of political correctness while careful legal judgment sometimes require committing crimes.

    The sheer dishonesty of these people just never ceases to amaze me.

    The reality here is simple: you people have absolutely no comprehension of terrorism or warfare whatever, and the results of the last seven years speak for themselves. You got caught with your pants down, you reacted with hysteria and malice, and you went on a rampage that sunk us into the dismal predicament we find ourselves in today.

    I not only want Mr. Goldsmith, Mr. Yoo, and Mr. Addington inhibited from committing crimes in the future, I want them prosecuted to the full extent of the law for the crimes they have already committed.

    I mean gee whiz Ken — isn’t that why we enact criminal statutes in the first place?

    Would you care explain just exactly what your theory of criminal enforcement is?

    I’d be a lot more interest6ed in that than I am in these shuck and jive apologies for torture and kidnappings etc.

  5. Martin Scheinin on Administrative Detention
    After a public debate with Kenneth Anderson in Washington DC more than a year ago it comes a bit as a surprise how Anderson presents my views as a bulldozer approach. Let me start by expressing in a nutshell my understanding of what human rights law says about administrative detention.
    1. There is no black-letter rule against administrative detention in article 9 of the Covenant on Civil and Political Rights (ICCPR) or elsewhere in United Nations human rights treaties. Under for instance the European Convention on Human Rights the issue is different, as article 5 (1) includes an exhaustive list of permitted situations of detention.
    2. The non-negotiable rules under ICCPR article 9 are: (a) any form of arbitrary detention is prohibited, and (b) any detention must be subject to court review as to its lawfulness. The established interpretation by the monitoring body, the Human Rights Committee, is that these rules are non-derogable even during a state of emergency. I am well aware of the fact that many experts of international humanitarian law think that having courts review POW status in wartime still is practically impossible as it was during World War Two. I agree with the view of the Human Rights Committee and believe that nowadays, in our world with human rights treaties, states must involve their (military or other) courts even when they go to war, not even to speak of when they fight terrorism outside the context of an armed conflict. 
    3. If a state introduces administrative detention and subjects its lawfulness to court review, it flows from ICCPR article 14 (1) that this court must respect the fundamental principles of fair trial, including the equality of the parties in terms of access to evidence, legal representation etc. This miniature version of fair trial rights is applicable and non-derogable irrespective of whether the case is classified as criminal or administrative.
    Ken Anderson quotes the UN executive summary of my 2007 report on the mission to the US (A/HRC/6/17/Add.3), without reflecting upon the somewhat more nuanced discussions that can be found elsewhere in that report, as well as in other statements that I have issued as UN Special Rapporteur on human rights and counter-terrorism. In the US mission report itself, paragraph 12 expresses my position that human rights law poses no obstacle for detaining persons actively engaged in hostilities during a non-international armed conflict: They “may be held as security detainees for the duration of the hostilities, but also treated as criminal suspects for their use of violence.” I do not take the view that the “try or release” maxim would exclude detaining the persons in question during the actual hostilities, analogously to POW:s during international armed conflict.  
    The issue of administrative detention is discussed a bit more in my 2007 report on a mission to Israel (UN doc. A/HRC/6/17/Add.4), considered simultaneously with the US mission report. Let me quote the relevant paragraph:
    25. Of further concern to the Special Rapporteur is the use in the West Bank of “administrative detention” authorized under Military Order 1229 (1988). This Order empowers military commanders in the West Bank to detain an individual for up to six months if they have “reasonable grounds to presume that the security of the area or public security require the detention” subject to confirmation by the District Court. Commanders can extend detentions for additional periods of up to six months, and the Military Order does not define a maximum cumulative period of administrative detention, thus meaning that detention can be extended indefinitely. At June 2007, Israel was holding approximately 830 Palestinians in administrative detention, and the Special Rapporteur is aware of cases in which persons have been held for periods of years under administrative detention. The terms “security of the area” and “public security” are not defined, their interpretation being left to military commanders, and thus lack the level of precision required by the principle of legality. Furthermore, much of the information concerning the reasons for such detention is classified, such that the detainee and his or her lawyer have no access to this information, available to the military court confirming the detention, and thereby no effective means of contesting the grounds of the detention. This is at variance with article 14 of the International Covenant on Civil and Political Rights, which not only guarantees the right to a fair criminal trial, but also requires that fundamental principles of fair trial be respected in any matter dealt with by a judicial body.
    As any careful and attentive reader can see, I am not saying that administrative detention per se is a violation of human rights law. I am simply saying that the Israeli version of administrative detention is incompatible with the ICCPR, for the reasons mentioned in the paragraph just quoted.
    Although the US mission report addresses the permissibility of administrative detention only in passing (para. 12),  there is a lot about Guantanamo, and also about how to close Guantanamo. Partly because of the emergence of a debate in the US but mainly because of the simultaneous consideration of the reports on my missions to the US and Israel, I included the following paragraph in my statement to the UN Human Rights Council, when introducing the two reports on 12 December 2007:
    More than six years after 9/11 and the apprehension of hundreds of persons, military commission proceedings have been initiated against less than a handful of the Guantanámo Bay detainees and the Government estimates ultimately to initiate proceedings against some 80 of them. Coupled with an ongoing discussion in the United States about introducing new legislation on preventive or administrative detention, legalizing the holding of individuals without trial, this triggers me to update my mission report by stating that the ex post facto introduction of new legislation on preventive detention, for persons that already for years have been in detention, would unavoidably amount to arbitrary detention in the meaning of article 9, paragraph 1, of the International Covenant on Civil and Political Rights.   
    This statement is available on the OHCHR website,  the emphasis included (see http://www2.ohchr.org/english/issues/terrorism/rapporteur/docs/Councilpresentation121207.doc). The emphasis on the words ex post facto is there not only because of the Latin, but also to highlight that I took the view that the retroactive introduction of administrative detention for a specific group of persons that already have been in unlawful detention for years, would be in breach of human rights law.
    While I do favour a “try or release” approach, I have not said that every form of administrative detention is automatically in violation of human rights law. Every effort to introduce such a regime would encounter problems in respect of ICCPR article 9 or 14. In the case of the Guantanamo detainees I believe a clash with ICCPR article 9 (1) would be unavoidable.
    Finally, as to detainees in Iraq and Afghanistan, I need to quote the actual US mission report:
    18. The Special Rapporteur is mindful of the fact that there are in Afghanistan some 700 and in Iraq around 18,000 persons detained under the control of the United States. Some of these detainees appear to be held for reasons related to the fight against terrorism, under a legal status analogous to that at Guantánamo Bay. He reminds the United States and other States responsible for the detention of persons in Afghanistan and Iraq that these detainees also have a right to court review of the lawfulness of their detention.
    I continue to stand 100 % behind these words which reflect the position already expressed above, concerning the non-derogable nature of the requirement of court review of any form of detention, even in times of emergency. I would have expected Ken Anderson to quote this passage for my position. Instead, he quoted the summary of the same report that expresses the broader “try or release” position. I do acknowledge that while reflecting my overall position, that sentence, if understood as a legal statement, should be conditioned on the factual issue of whether the detainee in question was actively engaged in an armed conflict that is still ongoing, and in respect of persons consequently held as security detainees (para. 12 of the report), supplemented with a requirement of meanwhile having the right of court review over the lawfulness of detention (para 18 of the report). 
     
    Martin Scheinin
    Professor of Public International Law, European University Institute
    UN Special Rapporteur on human rights and counter-terrorism
    For the US and Israel mission reports, see http://www2.ohchr.org/english/issues/terrorism/rapporteur/reports.htm

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