15 Jun An Israeli Case for Administrative Detention
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.