An Israeli Case for Administrative Detention

by Amos Guiora

I would like to thank everyone at Opinio Juris for inviting me to guest blog this week on detention policy issues facing the Obama Administration, the Congress, and the courts. Needless to say, I hope my comments contribute to the debate and I welcome comments/feedback from readers.

The discussion below addresses both detainees presently held and those detained who will be detained in the days and years ahead. My fundamental assumption is that the present detention model–which I suggest is largely ‘indefinite detention’—must be replaced by a paradigm that is consistent with U.S. constitutional protections and guarantees as articulated by the Supreme Court in Boumediene v. Bush and Judge Bates with respect to habeas corpus.

In considering detention policy with respect to detainees arrested since 9/11 held in Guantanamo Bay, Bagram, Abu Ghraib and elsewhere by the US (directly and indirectly), there are a number of fundamental issues requiring discussion and ultimately resolution by the Administration:

1) How is the post 9/11 paradigm to be defined? (traditional criminal law; prisoner of war; ‘hybrid’ combining aspects of both)?

2) What are the criteria for determining whether a specific detainee presents a particular threat to America’s national security?

3) What are the standards for judicial review for those detainees deemed to present a threat (after establishment of criteria based vetting process)?

4) Are all detainees ‘prosecutable’ or are some to be held in an alternate detention paradigm?

5) Where will released detainees be freed (country of their citizenship; US; third country)?

I have previously advocated the adoption of a hybrid model, one based on the criminal law but modified to reflect differences between terrorism and what is understood to be the traditional criminal law paradigm. In a nutshell, I define terrorism as actions intended to kill or injure innocent civilians or intimidate the civilian population from conducting its normal activities for the sake of advancing a cause (social, political, economic or religious), with no pecuniary benefit accrued to the terrorist. In addition, as I have suggested elsewhere, prosecuting accused terrorists often requires the introduction of classified intelligence information (bolstering the criminal evidence) justifying the establishment of an alternative judicial paradigm (national security court).

With respect to detention, I propose adoption of a two-tiered model:

1) Detention prior to trial in the traditional criminal law paradigm (based on criminal evidence);

2) Administrative detention (based on classified intelligence information).

Administrative detention was held by the Israeli Supreme Court (sitting as the High Court of Justice) to be lawful (in accordance with Clause 85 of the Defense Emergency Regulation Act of 1945), provided that the available intelligence information (which must be reliable, credible, time-relevant, and cannot be presented in open court because of ‘source sensitivity’) indicates that the individual in question is involved in a future act of terrorism. An Order is subject to three layers of judicial review:

1) A hearing before a military judge (akin to an administrative hearing)

2) An appeal heard before a senior military judge

3) A hearing before the Israel Supreme Court (sitting as the High Court of Justice).

According to the Act, the maximum period an Order may authorize detention for is six months, though it is renewable for an additional six months. The number of times an Order may be renewed is unlimited, though each renewal order requires the same three-step judicial process. The fundamental premise of the administrative detention model is the individual’s involvement in a future act: that involvement must present a sufficient threat (real, not perceived) to national security to justify a process where neither the individual nor counsel see the classified information for judicial hearings are in camera/ex parte. While human rights organizations (Israeli and international alike) have been extremely critical of the process which denies the detainee the right to confront his accuser, the High Court of Justice has upheld the measure as lawful and necessary in the context of national security provided the following questions have been weighed and balanced by the military commander (who signs the detention order based on the recommendation of the intelligence community):

1) The quality of the intelligence and the reliability of the source

2) The intelligence cannot be declassified (which would enable initiation of the criminal law process)

3) The threat the individual poses to national security

4) The appropriate length of detention (in proportion to the threat posed)

5) In considering whether to renew an order based on information that justified the initial order (rather than new information) the commander must weigh factors including continuing severity and nature of the threat.

Adoption of administrative detention requires authorizing congressional legislation rather than only an executive order. I would suggest that one of the critical ‘lessons learned’ of the Bush Administration’s measures in response to 9/11 was a fundamental lack of Congressional involvement and engagement.

In recommending adoption of the administrative detention model, my fundamental assumption is the critical need to determine whether detainees present a threat to national security, the requirement to assess the reliability and credibility of the intelligence information and to facilitate independent judicial review. While the obvious preference—from a legal and policy perspective—is to enable all post 9/11 detainees a full criminal trial, source protection (subject to independent judicial review) is a legitimate consideration in the context of lawful counterterrorism when intelligence information suggests the prospective detainee is involved in future acts of terrorism.

http://opiniojuris.org/2009/06/15/an-israeli-case-for-administrative-detention/

7 Responses

  1. With regard to the three layers of judicial review above, Lisa Hajjar’s study, Courting Conflict: The Israeli Military Court System in the West Bank (2005), does not inspire confidence in the integrity of the first two, and David Kretzmer’s The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002), suggests the High Court of Justice is not independent enough (with some notable but far too few exceptions) from the military and security apparatus or the IDF to serve as a reliable court of last resort. As Kretzmer notes, central to the perception of the nature of the state of Israel among the justices is the notion that this is equivalent to “the state of the Jewish people:”

    Although the Court has dismissed claims of a contradiction between this notion and the democratic principle [e.g., as enshrined in the two Basic Laws on human rights (1992)], particularist elements involved in the Zionist ideology of a Jewish state or state of the Jewish people are entrenched in its jurisprudence. The interests of the Jewish collective are seen as synonymous with the public good, or the interests of the state itself. These judges cannot be neutral in a case involving any act perceived as challenging those interests.

    Needless to say, the category of acts deemed threatening to those interests is remarkably large and fairly indiscriminate. And, again not surprisingly, “in many cases [the Court] has done its utmost to avoid standards of international law,” but “even when the Court has been prepared to look to international law, the way it has applied and interpreted it has often prevented it from serving as a meaningful constraint on the powers of the military.” In short, “In its decisions relating to the Occupied Territories, the Court has rationalized virtually all controversial actions of the Israeli authorities, especially those most problematic under principles of international humanitarian law.” And its record with regard to human rights standards and penal laws in the West Bank and Gaza is equally alarming (cf. deportations, punitive house demolitions and Israeli settlements).

    In other words, I think we might come up with a number of persuasive reasons (some of these not mentioned above but having to do with the nature of the Israeli/Arab conflict: for instance, the nature of the groups that are responsible for terrorist acts are quite different in the two cases, despite the tendency, for instance, to see al-Qaeda, Hamas and Hezbollah as cut from the same cloth) that rule out looking to the state of Israel as a possible model of administrative detention. 

    Apart from that, the record of this country’s intelligence community and the elastic and opaque notion of “national security” that so enchants the commanding heights of power suggests we’re structurally incapable at present of objectively and fairly determining “whether detainees present a threat to national security.” In the same vein, I’m not at all encouraged by recent efforts at ascertaining or assessing “the reliability and credibility of…intelligence information,” although I think the prospects of judicial review, comparatively speaking, are a little less bleak.

  2. I would be really careful in looking at the Israeli model of indefinite detention. Especially the regime established by Military Order 1229, which 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” is quite worrying, as the Military Order does not define a maximum cumulative period of administrative detention and terms like ‘security of the area’ or ‘public security’ are broadly defined. Their interpretation is being left to military commanders, and thus are likely to lack the level of precision required by the principle of legality. (I am not an expert of the Israeli regime, but this is my understanding of it.)

    Indeed, the crux of the matter is that 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.

    Instead of looking at this model I would suggest that the current Obama administration is taking a very careful look at the very recent case law of the European Court of Human Rights and the House of Lords on the UK’s own ‘indefinite detention light’ regime aka ‘the control orders regime’, which seems now to have settled (for Europe) one issue: nobody can be detained on the basis of secret evidence to which the accused doesn’t have access. This would constitute a violation of the right to a fair trial under the European Convention.

    Last week the House Of Lords followed  the European Court of Human Rights in A vs Others, and it had some very noteworthy paragraphs:

    Par. 59:”(…) The controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be.”

    par.80 (On the use of ‘special advocates’ and an ‘independent judge’ as procedural protections in a system of administrative detention): “The procedural protections can never outweigh the controlled person’s right to be provided with sufficient information about the allegations against him to give effective instructions to the special advocate”

    And my favourite quote (par. 84):
    “The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him.”

    There’s a lot to say about this subject, but one thing is clear: the introduction of an administrative detention regime is going to cause some serious friction with European allies and hamper cooperation in for instance the transfer of terrorist suspects to the US.

  3. @Mathias Vermeulen: I’m not sure if your summary of the House of Lords’ ruling is entirely correct. They did not forbid the use of secret evidence entirely, as one of the amici asked them to do, but rather only banned the practice of handeling such cases almost entirely based on secret evidence. The non-secret part of the evidence has to be sufficient for the controlee to have a general understanding of the government’s position, so that the special advocate can be briefed beyond mere general instruction.

    More importantly for the present thread, the House of Lords also did not disavow the practice of control orders as such. They just hightened the bar for the government.

  4. Response…With respect to Patrick’s thoughtful response above i would suggest the following: while i am (obviously) well aware of the criticism of the Military Court system (including Lisa Hajjar’s book) I would argue that the three levels of judicial scrutiny (military courts and Supreme Court) require the commander/legal adviser to undertake careful review of the intelligence information. The former President of the Supreme Court, Aharon Barak, wrote that ‘national security’ is not a magical phrase. I wholeheartedly endorse that philosophy which required military commanders/legal advisers to balance the rights of the individual with the rights of the state. As i have suggested in my postings the administrative detention paradigm is inherently problematic for all those involved. That said, in the effort to enable judicial review of otherwise classiifed information the process developed ensures just that—judicial review which is critical to protecting the rights of the individual. This is, as Patrick suggests (and I agree), critical to assessing the credibility/reliability of the intelligence information.
    With respect to Mathias’ comment I would refer to what I have posted elsewhere that all decisions of the executive are subject to active judicial review by the Supreme Court, sitting as the High Court of Justice. This clearly applies to all Military orders.

  5. Further to the discussion concerning the decision of the House of Lords in A v Others, strictly speaking, none of the controllee cases under consideration was treated as constituting “detention” at all; rather each was regarded as involving mere “restriction of liberty” as distinct from  “deprivation of liberty” for the purposes of Art. 5 ECHR.

    Of course, whether or not that is actually legally correct is a matter which is open to some debate . However it is an interesting question as to whether this “categorisation” issue does/ought to affect the equation regarding the disclosure issue, which may well be just a restatement of the whether the criminal/civil distinction [for article 6 ECHR purposes] makes any real difference as regards the discloure issue. (This is especially so given that control orders proceedngs imposing orders which constitute a deprivation of liberty are much more likely to be regarded criminal, as distinct from civil proceedings, bearing in mind in prticular the third criterion set down by the ECrtHR in Engel).

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