Dilemmas in the Administrative Detention Paradigm

There are two fundamental realities regarding the Israeli administrative detention process:
1) the individual (detainee) cannot confront his accuser
2) the individual (detainee) involved in planning terrorist actions is detained prior to carrying out an act of terrorism.

Balancing these two is essential to lawful implementation of a measure, which by its very nature, places the individual at an extraordinary disadvantage. When I was asked to review a file –whether as legal advisor or judge (see Tuesday’s post)—the dilemma was the same: is the measure truly necessary or is there another mechanism available that balances the legitimate rights of the individual with the equally legitimate rights of the state. While the preferred answer –provided I was convinced of the danger posed by the individual—was to initiate the criminal law process, operational counterterrorism is dependent on intelligence information. Which, in a nutshell, means protecting the source is of the fundamental essence for otherwise the state cannot gather intelligence information which is the heart and soul of operational counterterrorism.

By analogy: if terrorism depends on resources and motivation then counterterrorism depends on intelligence information based on sources. My dilemma, then, was whether the severity of the planned action justified denying the individual his ‘day in court’ in order to protect the source. As a lawyer trained to respect the principle of enabling the accuser to confront his accuser I consistently grappled with the following: deny the individual that right or potentially endanger the source which had direct implications on that particular source and indirect implications regarding other sources.

In many ways the dilemma is ‘lose-lose’; denial of otherwise guaranteed privileges and protections raises fundamental legal and moral questions regarding society and the limits it will go to protect itself. I have, throughout my career, recoiled at phrases such as ‘by all means necessary’; I always believed that a seat at the counterterrorism table (which I had) imposes the requirement of understanding the limits of power. That principle means being extraordinarily sensitive both to the rule of law and the dangers inherent to the ‘slippery slope’ as exemplified by government excess not subject to independent judicial review.

As the legal advisor mandated with recommending to the commander whether and for how long to administratively detain a Palestinian resident either of the West Bank or Gaza Strip I saw my responsibility as a buffer between competing interests. On the one hand, the security agency had its very specific interests which generally aligned with the commander’s; on the other hand the potential detainee had his rights and freedom which were deserving of protection. While the courts (military and Israel Supreme Court sitting as the High Court of Justice, HCJ) exercised independent review of the detention order (both with respect to its necessity and length) I endeavored to minimize the cases in which the HCJ would intervene in the commander’s decision. To that end, my responsibility was to carefully review the intelligence information to ensure that only those cases in which administrative detention was required were brought before the commander. The two step process–whether to detain and if yes, for what period of time –required balancing powerful, competing interests.

I have repeatedly argued that the most difficult part of the process was determining what detention period to recommend to the commander. Precisely because the detainee does not have the right to confront his accuser I found this decision more difficult than sentencing a defendant represented by counsel. It would be fair to state that the question of how many months in detention are appropriate with respect to a particular individual represent some of my most difficult internal struggles. While a mathematical formula does not exist I was guided by the principles of proportionality and necessity seeking to balance equally legitimate rights with the understanding, frankly, that the process is inherently problematic because the detainee cannot confront his accuser.

That said, it is important to recall the criteria for applying administrative detention: individuals who were involved to varying degrees in planning future acts of terrorism or had indicated their intention to commit future acts. In planning with others the individual –by analogy—was engaged in a conspiracy; by indicating to others an intention (as an example) to throw Molotov cocktails the next time an IDF patrol passed through his village the individual clearly expressed an intent to commit a crime. As the principle of administrative detention is preventive detention in both cases the ISA would recommend administratively detaining the individual; my decision (and this is critical to the discussion) would be based—in large part—on two factors:

1) reliability/credibility/time relevance of the intelligence information;
2) whether the information could be declassified (source protection).

I have advocated elsewhere for the creation of an alternative judicial paradigm for bringing post 9/11 detainees to trial; I would suggest that same court would be the most appropriate forum for administrative detention. The alternative paradigm is fundamentally predicated on the understanding that terrorist trials often require the introduction of classified information. This will be particularly true should the decision be made to bring detainees held over the course of a number of years in Guantanamo Bay, Abu Ghraib and Bagram to trial. Because both trials of suspected terrorists and administrative detention hearings involve review of intelligence information I would suggest that the proposed alternative judicial model is appropriate for both paradigms. Critics have, correctly, identified the fundamental flaw in the proposal: denying the individual the right to confront some or all of his accusers. That criticism is both valid and correct.

However, the unfortunate reality of operational counterterrorism is a reliance on classified intelligence information. The balance an alternative judicial paradigm (whether trial or administrative detention) seeks to strike is guaranteeing a process with judicial review rather than detention by executive fiat not subject to independent judicial review. That model is clearly unconstitutional and has, in large part, been struck down by the Supreme Court. The question going forward is what process does the Obama Administration establish for the thousands of detainees presently held. I would suggest that the proposed administrative detention model in conjunction with the alternative judicial model reflects a balanced approach in an extraordinarily complicated and complex paradigm.