Scholars’ Statement on U.S. Detention Policy

by Deborah Pearlstein

At the risk of contributing further to Ken’s angst about the coming post-Guantanamo future, I thought OJ readers might be interested in this latest entry in the public what-to-do-next discussion. Fordham Law School’s Leitner Center for International Law and Justice has begun posting a series of white papers prepared by various groups of scholars with recommendations about international human rights issues under the new administration. Of particular interest might be the Scholars’ Statement of Principles for the New President on U.S. Detention Policy, which addresses Guantanamo (among other things). Prepared under the auspices of the progressive think tank Center for American Progress, the detention white paper is signed by, inter alia, Derek Jinks, Sarah Cleveland, Gene Fidell, and Brig. Gen. David R. Irvine, U.S. Army (Ret.) (Irvine is a former interrogation instructor at the Sixth U.S. Army Intelligence School). Full disclosure – I signed onto it, too. For what it’s worth, at least “some” in the scholars group acknowledged the possibility of ongoing detention – consistent with U.S. and international law – for some of those currently held at Gitmo.

Some of the undersigned note that the new Administration, in its own review, may identify exceptional cases in which a detainee has not demonstrably committed a crime (for example, because there is a lack of admissible evidence to try the detainee for a crime), but the government has evidence to support its conclusion that the detainee has engaged in belligerent acts or has directly participated in hostilities against the United States. Continued detention of such detainees must be in accordance with the principles and policy recommendations outlined in this Statement … [and applicable U.S. and international law].

UPDATE: Lest my nudge back to Ken risk distorting the overall gist of the document, I should hasten to clarify that the signatory scholars were united in opposing “any effort to extend the status quo by establishing either (1) a comprehensive system of long-term ‘preventive’ detention without trial for suspected terrorists, or (2) a specialized national security court to make ‘preventive’ detention determinations and ultimately to try terrorism suspects.”

6 Responses

  1. Ouch!  Double ouch-ouch!  lol

  2. I noticed that there is a principle that proposes “Apply a Zero Tolerance Rule Regarding Torture and Other Illegal Abusive Treatment:”

    I read the text and did not see the principle mentioned of criminal prosecution of high-level civilians or generals who authorized torture (see Dick Cheney’s interview yesterday with ABCNEWS where he admitted to having committed the war crime of torture).  If these scholars are not willing to keep criminal prosecution on the table, I would suggest that they are just whistling in the wind on Zero Tolerance and should be called out for that weakness in their recommendations.

    We are having a panel on criminal prosecution of the high-level lawyers (includinhg those in academia) at the AALS Annual Meeting in the SALT suite at lunch on Wednesday, January 7, 2008.  Come there to see some scholars who are willing to put teeth into zero tolerance.

    For more information go to


  3. If we are going to prosecute lawyers, then we better be prepared to include those who signed this statement. The road to Hell and to jail can be paved with good intentions.

    There are two alternate systems. A criminal is charged individually for things he has personally done. His case operates under domestic law and, in the US, he is entitled to the protections provided by the Constitution.

    A soldier has combatant immunity and may not be charged with civilian crimes or tried in civilian courts for the things he does in lawful combat as a soldier. He is protected by international law and the Geneva Conventions. When captured, he is not treated individually and we may not take revenge for things he did. The front line soldier must be treated the same as the captured cook. Captured soldiers are treated as a group, not as individuals, and held for being soldiers and not for specific acts (unless they committed war crimes).

    If a soldier invades the US and during combat kills a policeman, he wants to be treated as a POW and not as a criminal. In civilian law, someone who kills a policeman is a murderer. The soldier is not innocent of the charge because of self defense or some other criminal defense. Rather, the charge may not be made because the soldier has combatant immunity.

    Sometimes being a criminal is a better deal; sometimes being a solider is better. But the individual or his lawyer doesn’t get to choose. Soldiers must be handled through military law, civilians must be handled through criminal law. Many assert that there are civilians among the Guantanamo detainees who should not be subject to military law. They say, “charge them criminally or release them”. That is half the story.

    There are also soldiers in Guantanamo. We know a few of their names and stories. Yasir Hamdi was a soldier who, as in many of these cases, came to Afghanistan to learn how to fight Russians in Chechnya. Instead he ended up on the front lines against the Northern Alliance. He was captured and turned over to the US. He should have been entitled to the protection of the Geneva Convention, but Bush and Yoo decided that no members of the Afghan army would be treated as real soldiers.

    This paper makes the opposite mistake. It is also wrong and illegal under international law to deny soldiers the protection of military justice as it is to deny civilians the protection of civilian justice. The solution is not to replace one global ideological pronouncement with the opposite one. The solution is to do a proper sorting based on facts.

    We know the law here, because both extremist positions have been presented to all the courts, including the Supreme Court, in all the cases. The government claimed these guys are “unlawful enemy combatants” and then asserted that the courts could not review that classification. The other side said that the law absolutely prohibits any classification as combatant. In seven years of litigation, only two cases proceeded to the presentation of actual evidence: al Marri before Judge Floyd and the Boumediene Bosnians before Judge Leon. In every case (Hamdi, Rasul, Hamdan, Boumediene, Padilla, …) the courts rejected absolutist arguments and found that there was a due process requirement to eventually examine the facts of that individual case.

    There are two types of errors. A civilian is entitled to due process to determine if he has been improperly classified as a combatant. A combatant also has the right to a tribunal under Article 5 of the Geneva Convention if he is denied combatant status. [The absence of any prior claim for Geneva protection by detainees is not meaningful after Bush declared that no such claim would be allowed. You have to reverse the Bush policy and give detainees a fair opportunity to claim combatant status when the feel it will be fairly considered.]

    Then, as was quoted above, you need to give the government a chance to prove that someone was a combatant if “the government has evidence to support its conclusion that the detainee has engaged in belligerent acts or has directly participated in hostilities against the United States”. [By the way, this is a NATO operation in Afghanistan, so the test is whether the detainee participated in hostilities against the US or its allies, not just the US.] For those who are found to be civilians, then it make sense to talk about “charge or release” or debate forms of preventive detention.

    This isn’t about replacing one inflexible ideology with a different one. This should be about making the right decision in every single case, without (like Bush) foreclosing valid possibilities in advance through narrow minded pronouncements.

  4. Of course, the distinction with these academics is that they did not have operational rolls in a conspiracy to torture – so I fail to see how they could be subjects of prosecution.

    More importantly, this type of action by them is a kind of citizen’s action to try to get the US in compliance with international and domestic obligations.

    In turn, your analysis Howard and that of others is an excellent citizen effort to help us see clearly the important aspects of the contours between criminal law settings and military law settings.  Something I greatly appreciate to read.

    Given the Senate Armed Service Committee report last week that Abu Ghraib was not just a few rotten apples, I thought it appropriate to note here this report from Jurist about the new Colonel to head up the military commissions:  Col. Pohl

    “Pohl, who has served as a military judge since 2000, is best-known for declaring the Abu Ghraib prison in Iraq a crime scene [JURIST report] and forbidding its demolition in 2004. Pohl also refused to allow [JURIST report] lawyers for the court-martialed soldiers to question then-Defense Secretary Donald Rumsfeld about the chain of command leading down to the soldiers charged with abusing inmates.”

    With the Vice President confirming two days ago he helped authorize torture (though of course he sticks to the Yoo definition implicitly), we see how not only low-level persons should be prosecuted.  To not speak of that is a kind of omerta in the United States and on these sites that select relevant topics for discussion, in principle statements or otherwise, it is peculiar blindspot.

    I would note that in 2006 the ASIL Centennial Resolution on Laws of War and Detainee Treatment spoke, even then, to criminal prosecution (point 6).

    “The American Society of International Law, at its centennial annual meeting in Washington, DC, on March 30, 2006, Resolves:
    1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum).
    2. Conduct of armed conflict and occupation is governed by the Geneva Conventions of August 12, 1949, and other international law (jus in bello).
    3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogation is permitted.
    4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.
    5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.
    6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts of their subordinates.
    7. All states should maintain security and liberty in a manner consistent with their international law obligations.”

    On point 6, Mary Ellen O’Connell’s ASIL Insight from May 2006 states:

    6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts of their subordinates.
    Under the doctrine of command responsibility in international law, leaders may be held criminally liable for the acts of subordinates:

    The doctrine encompasses two different forms of liability. The first is direct or active command responsibility-when the leader takes active steps to bring about the crime by, for example, ordering his subordinates to do something unlawful…
    The second type of command responsibility (and the one to which people usually refer when they speak generally of “command responsibility”), involves “indirect” or “passive” command responsibility. Because direct proof that a commander actually ordered his troops to commit crimes is not always forthcoming, the second type of command responsibility is more significant in both theory and practice as a distinct theory of liability.[42]

    At the time of writing, the latest precedent as to the standard of command responsibility under international law is found in a decision of the ICTY, Prosecutor v. Timor Blaskic. The case concerned criminal liability for indirect or passive command responsibility during the conflict in the former Yugoslavia.

    The Appeals Chamber … holds that a person who orders an act or comission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) [of the Statute of the ICTY] pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.[43]


  5. Ben: In the civilian justice system there is a more visible distinction between the administration of justice (judges, lawyers, juries, due process, presumption of innocence) and the administration of prisons (wardens, guards). That line is blurred in military detention because the two chains of command end at the same place, but it is still a logical distinction for argument. The Scholar’s Statement  and my comments address the legal basis for detention and the status of prisoners. Is the poor front line soldier standing in the Panjshir with his AK47 a “terrorist” because of something he did not know done  by a handful of people half a world away? Is his detention to be governed by domestic criminal statutes or in common international law? How to balance the possibility of Constitutional violations of due process for a civilian with the possibility of committing a war crime by charging combatants with civilian offenses?

    The same people who made these decisions in the previous administration may also have been responsible for violations of both domestic and international law in the administration of prisons, but that is a different topic and they were acting in a different capacity. The Statement would stray off topic if it confronted that issue now. The detainees could have been treated scrupulously according to Army Regulations, but there would still have been a question about the legal basis for their detention. Alternately, someone can be tried and sentenced by the Central Criminal Courts of Iraq under the fairest of trials, and still end up being tortured by Shia extremists in some regional prison in Iraq.

    Law and Order gets it wrong. The People are represented by three groups. The third group is the prison guards, but they don’t make for exciting TV if they do their job right.

  6. Howard’s problem is that he never gets the actual law right, mostly because he’s too busy editing the facts and the law to fit his conclusions. A soldier who kills a policeman outside the context of a lawful military operation is subject to prosecution for murder like anyone else. Same goes for rape, looting, armed robbery, etc.

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