Law, not fear, should guide detention

(Delighted to welcome back alumna Laurie Blank, who contributes this guest post)

Hearings have begun on proposed House and Senate legislation designed to create a comprehensive framework for the detention of individuals captured in the course of U.S. counterterrorism operations against al Qaeda and other terrorist groups. Those who have decried the lack of a statutory framework for what appears to be the inevitable long-term detention of suspected terrorists will likely welcome the proposed legislation as the long-awaited antidote to the ad hoc process that has developed over the past nine-and-a-half years.
As I argue in a recent op-ed in the Atlanta Journal Constitution, entitled "Build Detainee Policy on Sound Law," however, mere legislation itself is not the answer.
Legislation based on the fundamental moral and legal principles that guide our country would be a giant step forward – for fair and effective counterterrorism that balances national security and individual rights. But neither the Detainee Security Act (House, proposed by Representative McKeon) nor the Military Detainee Procedures Improvement Act (Senate, proposed by Senators McCain, Graham, Lieberman and others) fits the bill.
These proposed bills are based primarily on fear. On the fear that civilian courts cannot handle terrorism cases and on the fear that courts will not defer completely to the Executive’s claims of national security when faced with grave violations of individual rights.
The first fear is unfounded.
Since September 11th, over two hundred suspected terrorists have been prosecuted in federal courts with a conviction rate over 91%. We have hundreds of convicted foreign terrorists in prison in the U.S. right now. In contrast, fewer than five have been tried before the military commissions and most of those have already been released. The military commissions have seen significant improvement from their first iteration, but still remain barely tested both in substance and numbers of prosecutions.
These numbers demonstrate that completely foreclosing all trials in civilian courts and all transfers of detainees to the United States is not grounded in careful policy analysis. It seems to be based instead on the fear of those who are suspected – not proven – of trying to kill Americans, and a reactive desire to therefore deny them rights. The worst serial murders in U.S. history got full and fair trials. What is it about the word “terrorist” that makes us forget where we come from?
But it is the second fear that should catch the breath of every American.
The proposed bills simply legislate the courts out of the picture altogether. The annual periodic review process created to assess the continued detainability of detainees at Guantánamo (or future detainees) has no appeal process. This is important enough to repeat – no appeal process. There is no doubt that an annual review is better than long-term detention with no review process at all. This incremental improvement is insignificant, however, when the review board is not accountable in any way to a court or any other method of independent judicial review.
The Senate bill actually goes one step further still. In a total bow to Executive authority, the legislation states that the review panel’s finding regarding a detainee’s continued detention is simply a recommendation and does not bind the President. This is the ultimate dagger in the heart of separation of powers and checks and balances – a Congressional license of complete Executive authority and no courts to say otherwise.
The Geneva Conventions do not, to be sure, mandate judicial review of all detention determinations, either for prisoners of war under Article 5 of the Third Geneva Convention or under Article 43 of the Fourth Geneva Convention. Both require necessary guarantees of independence and impartiality, not a particular type of forum, judicial or administrative or other. Beyond the fact that the proposed legislation raises serious questions about whether the review panels can meet this test, the lack of judicial involvement in the long-term detention review process poses a much greater problem. As I discussed in my recent article, on which I previously posted, to call the indefinite detention at Guantánamo – both ongoing and future – detention “under the laws of war”” is a significant stretch of the traditional concept of law of war detention. When we do not know how long this conflict will last or the parameters of the battlefield, when detention effectively serves a punitive purpose rather than a protective purpose, judicial engagement in the process is critical to ensuring protection of individual rights.
The only reason to keep the courts out, as the proposed legislation seeks to do, is the fear that the courts will not approve of the process, either in individual cases or overall. The fear that courts might actually inject individual rights into the equation, upsetting the current complete dominance of national security interests over any other interest, no matter how fundamental.
We have learned the lesson of an unchecked executive before – with the suspension of habeas corpus during the Civil War and the internment of Japanese-Americans during World War II – and in both cases it was the courts that set us back on course and restored the balance between national security and individual rights.
As detailed in IntLawGrrls' many posts on Guantánamo, when detention there threatened to become truly a legal black hole in the first years after September 11th, the Supreme Court repeatedly held that detainees at Guantánamo have a right to legal representation and to habeas corpus – in essence, a right to exist in a legal framework. Let’s give our courts a direct role in that legal framework – detention without trial raises extraordinary challenges to American values; independent and robust judicial review throughout the process can help to mitigate those challenges and the risk to fundamental principles.
Supporters of indefinite detention – and likely of the proposed bills in the House and Senate – staunchly defend it as “detention under the laws of war.” If the detention is founded on fundamental legal principles signed and ratified by every nation around the world, then why keep the courts out of the business of reviewing and assessing the lawfulness of such detention?
Legislating based on panic is neither moral nor effective. America needs a counterterrorism strategy – including detention of suspected terrorists where appropriate – that is based on sound legal principles and paradigms, not just on the fear of a future attack.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

[L]awyers and courts who practice in the area and scholars who write in the field ... exhibited a broad and stable consensus for some time on certain principles regarding the treatment of detainees during times of war and the status and applicability of the protections of the Geneva Conventions. Recent events, largely centered on the policies and actions of the Bush administration, have led to a debate that has disrupted that consensus. For that reason, a set of principles about which there was probably little disagreement (and hence little political polarization) fifteen years ago are now the subject of active dispute. In that highly specific context, those seeking to preserve the prior consensus are termed "liberal" while those seeking to replace that prior consensus with a more aggressive view of executive power are termed "conservative." (The labels are inapt here, of course, since it is the "liberal" position that seeks to preserve the old arrangement.)

-- Our colleague, Professor Tobias Barrington Wolff (Penn Law) (right), using an example familiar to readers of our Guantánamo series in his contribution to an investigation into ideology and academia that another colleague, Professor Brian Leiter (Chicago Law), initiated at his Law School Reports blog.

On July 29

On this day in ...
... 2003, the most notorious of those who led rebels during the 1990s civil war in Sierra Leone, 65-year-old Foday Sankoh, died in custody while awaiting trial before the Special Court for Sierra Leone (logo at right). On March 7 of the same year, that court had issued against the Revolutionary United Front leader an indictment on 17 counts of crimes against humanity, violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, and other serious violations of international humanitarian law. The indictment would be withdrawn on December 8, 2003.

(Prior July 29 posts are here, here, and here.)

US ♥ international law

Well, sort of.
Consider this excerpt from the brief just filed by the United States in a Guantánamo detainee's habeas corpus case:

Petitioner cites the panel majority’s statement that the 'premise that the war powers granted by the [Authorization for Use of Military Force (2001)] and other statutes are limited by the international laws of war * * * is mistaken.' The Government agrees that this broad statement does not properly reflect the state of the law. The Government interprets the detention authority permitted under the AUMF, as informed by the laws of war. That interpretation is consistent with the Supreme Court’s decision in Hamdi v. Rumsfeld (2006), and with longstanding Supreme Court precedent that statutes should be construed as consistent with applicable international law.

Pp. 1-2 (citations switched to hyperlinks).
So said the United States' response to the petition for rehearing of the ruling of the U.S. Court of Appeals for the District of Columbia Circuit (courthouse above right) in Al Bihani v. Obama (2010). (Prior IntLawGrrls post) Indeed, in the body of its argument (pp. 6-9), the government repeated and expanded upon its nod to international law. In so doing, it cited case law familiar to those of us who labor in this field. For example:
► Murray v. Schooner Charming Betsy (1804), a precedent from the Court of Chief Justice John Marshall, was cited for the proposition that "an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains."
► United States v. Yunis (D.C. Cir. 1991), a judgment (by a panel included then-Judge Ruth Bader Ginsburg, along with then-Chief Judge/now IntLawGrrls guest/alumna Patricia M. Wald and the opinion's author, Abner Mikva) arising out of a 1985 cross-border, terrorism-linked hijacking. Yunis was cited for the proposition that "courts will not blind themselves to potential violations of international law where legislative intent is ambiguous."
Notably, the U.S. position in this brief stands at odds with that taken in the Military Commissions Act of 2006; in section 5(a), Congress forbade anyone to "invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action ... as a source of rights in any court of the United States or its States or territories."
At both junctures of its Al-Bihani brief, however, United States argued that international law offers no reason to grant the detainee's petition for rehearing. Here's page 2:

[N]one of this changes the outcome ... The panel majority specifically addressed and properly rejected petitioner’s argument under international law. That unanimous ruling is correct and does not warrant rehearing or rehearing en banc.

What the government giveth ....

D.C. Circuit disappoints

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

After the Supreme Court ruled in 2008 in Boumediene v. Bush that the detainees at the Guantánamo Bay detention facility are entitled to habeas corpus to challenge the legality of their detention, the U.S. District Court for the District of Columbia started to take action on the hundreds of petitions filed. In these habeas proceedings, the court has faced the threshold legal question of the scope of the government’s authority to detain pursuant to the 2001 Authorization for Use of Military Force.
I thought it would be interesting to see how the D.C. District Court delimited the permissible bounds of the government’s detention authority, specifically focusing on whether the court’s decisions are consistent with the internment standards under the law of war, international humanitarian law. My conclusions were recently published as Guantánamo Habeas Review: Are the D.C. District Court’s Decisions Consistent with IHL Internment Standards?, 42 Case W. Res. J. Int’l L. 197 (2009).
When my article was submitted at the end of August 2009, the D.C. District Court had ruled on 35 petitions and granted 29, under both the Bush and Obama Administrations. The D.C. District Court has now ruled on 41 petitions, granting 32.
Significantly, on Tuesday, the U.S. Court of Appeals for the District of Columbia issued its first opinion, Al Bihani v. Obama, reviewing a habeas petition on the merits.
In affirming a decision below that had denied relief, the panel of the D.C. Circuit (courthouse above left), in an opinion written by Judge Janice Rogers Brown (right), embraced a detention authority more expansive not only than international humanitarian law permits but also than the D.C. District Court has generally asserted.
Both the Bush and Obama Administrations and the D.C. District Court have analogized to international humanitarian law of international armed conflicts in determining the internment standard to be applied to those detained in relation to what the Supreme Court in Hamdan v. Rumsfeld (2006), indicated to be a “conflict not of an international character” between the United States and al Qaeda in Afghanistan.
In their analogous application of international humanitarian law, both the Administrations and the court have analogized solely to the Third Geneva Convention, applicable to prisoners of war. No mention is made of the Fourth Geneva Convention, protecting civilians.
In my article, I discuss whether analogous application of international humanitarian law internment standards applicable to international armed conflict is appropriate in non-international armed conflict and, if so, in which form. I demonstrate that while it may be acceptable to apply the international humanitarian law standards of international armed conflict by analogy to non-international armed conflict, these standards do not and should not extend to any of those individuals at Guantánamo, who are interned in relation counter-terrorism operations not passing over the threshold into armed conflict.
My analysis indicates that the D.C. District Court’s application of the Bush Administration’s definition of “enemy combatant” and the refined standard provided by the Obama Administration are in some ways narrower and in other ways potentially broader than the international humanitarian law internment standards. Nevertheless, that court has done an admirable job in handling certain complicated and unsettled issues under international humanitarian law, such as the meaning of “direct participation in hostilities” and the analogous application of “combatancy” to non-international armed conflicts. While some of the factors that the judges of the D.C. District Court determined established “combatancy” raise concern of being beyond the scope of factors acceptable under international humanitarian law, the D.C. District Court appears to have thus far reined in the Administration’s standards in a manner more consistent with the definition of “combatant” as understood under international humanitarian law.
The recent D.C. Circuit’s decision, however, determined these international humanitarian law matters not to be of concern, as the court completely rejected the premise that international humanitarian law constrains the authority conveyed by the AUMF to detain. The court determined that international humanitarian law is “not a source of authority for U.S. courts.” The court did so despite the ruling of the Supreme Court in Hamdi v. Rumsfeld (2004) and despite the government view that international humanitarian law has a role in the interpretation of the AUMF’s grant of authority, as pointed out in Senior Judge Stephen F. Williams' concurrence.

The Circuit Court’s decision provides much for discussion.

Suffice it to say for the purpose of this posting that those who had hoped, either that the exclusion of international humanitarian law from the determination of the scope of detention authority or that D.C. Circuit’s clarification of the District Court’s differing interpretations of the internment standard would narrow the scope of government’s authority to detain, find themselves concerned and disappointed.

On December 8

On this day in ...
... 2005, at a diplomatic conference, states parties to the 1949 Geneva Conventions on the laws of war established establishes a new emblem -- the red crystal -- that serves alongside the red cross and red crescent as symbols of the International Committee of the Red Cross, the nongovernmental organization charged with monitoring compliance with Geneva law. The move occurred by way of adoption of the Third Additional Protocol to the Geneva Conventions, which entered into force in 2007 and now has 51 states parties, among them the United States. (image credit)

(Prior December 8 posts are here and here.)

Military Commissions Act of 2009: New AND Improved?

Congress passed several amendments to the Military Commissions Act last Thursday, as part of the National Defense Authorization Act for Fiscal Year 2010. President Barack Obama signed the legislation yesterday.

An earlier version of this post stated that "There is much of importance — some good, some less good — in this legislation." That post went on to focus on the war crimes provisions of the MCA in light of our prior posts on this topic (see, e.g., here and here) (Others have discussed some of the procedural aspects governing the use of coerced confessions and the applicability of Miranda warnings or the collateral review aspects). Unfortunately, the earlier post was based on a prior version of the legislation that did not ultimately get passed. As a result, there is less good in the new legislation as I detail below.

►First (good), the legislation comes closer to standard international humanitarian law lexicon in addressing itself to “alien unprivileged enemy belligerents” rather than “alien unlawful combatants.” Thus, the basic concept statutory provision has been changed from:

§ 948b. Military commissions generally

(a) Purpose. This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.

to:

(a) Purpose. This chapter establishes procedures governing the use of military commissions to try alien unprivileged enemy belligerents for violations of the law of war and other offenses triable by military commission.

An “alien unprivileged enemy belligerent” is defined at Sec. 948a(7) as:

an individual (other than a privileged belligerent) who—
(A) has engaged in hostilities against the United States or its coalition partners;

(B) has purposefully and materially supported hostilities against the United States or its coalition partners; or

(C) is a member of al Qaeda.

This definition adds to our genealogy of efforts to define who may be detained and prosecuted in the post-9/11 era.

►Second (good), Congress has deleted reference to the status of military commissions as “regularly constituted courts” affording the necessary “judicial guarantees” for the purpose of common Article 3. The original legislation — passed in the wake of Hamdan v. Rumsfeld (2006), which classified the armed conflict with Al Qaeda and the deposed Taliban as a Common-Article-3 non-international armed conflict, at a minimum — boldly asserted that the military commissions satisfied common Article 3, as if the courts would simply accept such a claim:

(f) Status of commissions under common Article 3. A military commission established under this chapter is a regularly constituted court, affording all the necessary "judicial guarantees which are recognized as indispensable by civilized peoples" for purposes of common Article 3 of the Geneva Conventions.

In deleting this language, Congress acknowledged that it is the courts that will decide whether such commissions meet U.S. constitutional and international law obligations and that simply saying something is so does not make it so.

► Third (bad), the legislation still asserts that it does not create any new crimes. The 2006 MCA stated that all of its enumerated crimes pre-existed its enactment and thus could be invoked in a criminal prosecution arising out of pre-2006 events, such as the attacks of 9/11 or even the U.S.S. Cole and Khobar Towers attacks. The original language stated:

§ 950p. Statement of substantive offenses

(a) PURPOSE.—The provisions of this subchapter codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission.

(b) EFFECT.—Because the provisions of this subchapter (including provisions that incorporate definitions in other provisions of law) are declarative of existing law, they do not preclude trial for crimes that occurred before the date of the enactment of this chapter.

A draft version of the legislation that did not get passed had more appropriately hedged this a bit when it stated:

§ 950p. Definitions; construction of certain offenses; common circumstances

(d) Offenses Encompassed Under Law of War—To the extent that the provisions of this subchapter codify offenses that have traditionally been triable under the law of war or otherwise triable by military commission, this subchapter does not preclude trial for offenses that occurred before the date of the enactment of the National Defense Authorization Act for Fiscal Year 2010.

This language, which acknowledges that just because Congress says something was already penalized by the law of war does not make it so, unfortunately did not make it into the final legislation. New Section 950p(d) has the same effect as the language in the 2006 MCA.

► Fourth (good), the status of the Geneva Conventions as a source of law has been elevated considerably. Originally, the legislation purported to prevent the treaties' invocation in any setting and for any purpose. This language stated:

(g) Geneva Conventions not establishing source of rights. No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.

The 2009 legislation states at Sec. 948b:

(e) Geneva Conventions Not Establishing Private Right of Action—No alien unprivileged enemy belligerent subject to trial by military commission under this chapter may invoke the Geneva Conventions as a basis for a private right of action.

Thus, while the original provision purported to bar any invocation of the Geneva Conventions, the new language accepts that the Conventions may be applicable offensively in habeas proceedings or defensively in penal proceedings by providing only that they may not give rise to an independent cause of action.

►Fifth (bad), conspiracy (the charge of choice before military commissions) is still listed as a substantive crime. In the rejected draft version of the legislation, conspiracy appeared only as a form of responsibility applicable to all the enumerated offenses along with attempt, solicitation, superior responsibility, accessoryship, etc. This change was not adopted, and so the new MCA still allows for the prosecution of an inchoate crime of conspiracy, notwithstanding that a plurality of the Supreme Court in Hamdan determined that no such crime exists under the law of war. Had the draft language been adopted, conspiracies would have been prosecutable only as a form of responsibility when some substantive war crime that was the object of the conspiracy was committed.

► Sixth (good), the legislation includes at §950p(c) a more explicit war nexus, thus limiting the ability of the government to use military commissions to prosecute crimes that occurred prior to the initiation of an armed conflict involving the U.S. The starting date for any conflict involving the U.S. has never been definitively established, but any such armed conflict likely commenced on September 11th at the earliest and October 7, 2001 (when the U.S. invaded Afghanistan) at the latest. (Although Justice Thomas in Hamdan and others have argued that any armed conflict was initiated earlier, either when Al Qaida "declared war" on the U.S. (Justice Thomas's theory) or attacked our embassies in Kenya & Tanzania). The new war nexus states:

(c) Common Circumstances—An offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with armed conflict.

Incidentally, the formulation of the war nexus is identical to that in the ICC's Elements of Crimes.

► Seventh (good, I guess), the crime of spying has been slightly redefined to more clearly reference the law of war (added text in bold):

Any person subject to this chapter who, in violation of the law of war and with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished by death or such other punishment as a military commission under this chapter may direct.

There is much to digest in this massive piece of legislation. The amendments described above are welcome, albeit too modest. Congress would have done better to cut more deeply into the list of purported war crimes to cull out all the novel offenses, including

• inchoate conspiracy,
• material support for terrorism
• and murder of a privileged combatant

rather the leaving the task of determining their cognizability to the commissions (and the courts if they're allowed to get their hands on these cases). Had the crime of conspiracy actually been deleted as was obviously contemplated, many of the existing military commission cases would have had to be re-worked in light of the heavy reliance on that charge.

Cruelty cognizant

Tucked in the recent ASIL Insight by our colleague, Vanderbilt’s Ingrid Wuerth, is an intriguing observation:
There’s a circuit split on whether victims of cruel, inhuman and degrading treatment may recover under the Alien Tort Statute.
Such mistreatment has long been forbidden in international instruments:
► The longstanding ban in international humanitarian law is evident in Common Article 3 of the Geneva Conventions of 1949, which "prohibit[s] at any time and in any place whatsoever ... "outrages upon personal dignity, in particular humiliating and degrading treatment;" those treaties further provide that such mistreatment of protected persons during armed conflict may constitute a grave breach punishable as a war crime.
► In international human rights law, an express ban appeared as early as the spring of 1948, when the American Declaration of the Rights and Duties of Man affirmed in Article XXVI:

Every person accused of an offense has the right ... not to receive cruel, infamous or unusual punishment.

At year’s end, the Universal Declaration of Human Rights posited an even broader proscription in Article 5:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

That proscription of what’s come to be called CIDT became binding international law when, as Article 7 of the International Covenant on Civil and Political Rights, it entered into force in 1976.
Similar formulations appear in other binding treaties, among them Article 5 of the African Charter on Human and Peoples’ Rights, Article 5 of the American Convention on Human Rights, and Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
And yet it’s an open question whether CIDT is cognizable under the Alien Tort Statute. That 18th century statute, about which we've posted frequently, states:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

The U.S. Court of Appeals for the 2d Circuit recently ruled that CIDT is cognizable in the Wiwa v. Shell Petroleum Dev. Co. of Nigeria litigation that’s the focus of Wuerth’s excellent Insight (not to mention these prior IntLawGrrls posts). But the 11th Circuit had held to the contrary in Aldana v. Del Monte Fresh Produce (2005).
At issue, Wuerth (above right) explains, is the Supreme Court’s statement in Sosa v. Alvarez-Machain (2004) that only claims possessing "‘definite content and acceptance among civilized nations’" are actionable. A court’s view of whether CIDT meets that standard seems to hinge on whether treaty provisions deemed non-self-executing – like that in the ICCPR, a treaty to which the United States is party – are nonetheless evidence of customary international law; to use the statute’s term, "the law of nations." The 2d Circuit says yes, the 11th Circuit says no.
This is no minor circuit split.

Alien Tort suits arising out of post-9/11 detention already have been filed, and more are certain to follow. Allegations of torture surely would meet the Sosa standard; however, given the United States’ recent efforts to ascribe a very narrow definition to "torture," plaintiffs may have an uphill battle proving that their treatment fits meets the standard set by a court. A lesser-included finding of "cruel inhuman or degrading treatment" would seem the logical default. If that finding is unavailable – for the reason that CIDT is not cognizable – plaintiffs will have alleged violation of a right that lacks a federal remedy.

On August 22

On this day in ...
... 1864 (145 years ago today), a 2-week conference among 16 nation-states in Geneva, Switzerland, concluded with the adoption of the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. (credit for painting of 1864 signing by Armand Dumaresq, © Photothèque ICRC) As detailed by the nongovernmental organization charging with monitoring compliance, the International Committee of the Red Cross, this 1st Geneva Convention included the following principles:

► relief to the wounded without any distinction as to nationality;
► neutrality (inviolability) of medical personnel and medical establishments and units; and
► the distinctive sign of the red cross on a white ground.

This treaty, which entered into force on June 22, 1865, "ceased to have effect only in 1966 when the last state party to it which had not yet acceded to a later Convention (Republic of Korea) acceded to the Conventions of 1949."
... 1904 (105 years ago today), Kate Chopin (right) died at age 53 of a brain hemorrhage in St. Louis, Missouri, the same city where she'd been born Katherine O'Flaherty to a father who'd emigrated from Ireland and a mother of French ancestry. According to this website,

Kate grew up speaking both French and English at home. She was not only bilingual but bicultural, and the influence of French life and literature on her thinking is noticeable throughout her fiction.

She married in 1870 and moved to Louisiana, where she and her husband had 6 children in the dozen years before he died from malaria. She returned to St. Louis and began to write, publishing stories in periodicals like Vogue and Atlantic Monthly. Chopin is best known for The Awakening (1899), her proto-feminist novel about a Louisiana woman. Written in English, it's since been translated into many languages, including French, Dutch, Portuguese, Czech, Korean, and Polish.

(Prior August 22 posts are here and here.)

Work On! Teach international humanitarian law

(Work On! is an occasional item about workshops, roundtables, and other scholarly fora) Law faculty interested in learning more about one of intlaw's most vibrant subfields these days -- international humanitarian law -- are invited to take part in the 2d Teaching International Humanitarian Law Workshop, to be held on October 2-3, 2009, at American University Washington College of Law, 4801 Massachusetts Avenue, N.W., Washington, D.C. That law school's Center for Human Rights & Humanitarian Law is convening the workshop in conjunction with the International Committee of the Red Cross.
The workshop is aimed at law professors who are interested in teaching an international humanitarian law course for the 1st time, who've taught the course but wish to rethink it, or who would like to integrate the subject into other courses they teach, such as international criminal law, public international law, or human rights law.
On the program:
► The Scope of IHL and Ways to Teach IHL, taught by Gary Solis, Georgetown, and Col. Dave Wallace, U.S. Military Academy at West Point
► Intersections of IHL with Human Rights and International Criminal Law, taught by (invited) Doug Cassel, Center for Civil and Human Rights, University of Notre Dame Law School, and IntLawGrrl Beth Van Schaack, Santa Clara Law School
► Protected Persons, taught by Phil Sundel, International Committee of the Red Cross
► IHL and Terrorism, taught by me, Diane Marie Amann, California International Law Center at King Hall, University of California, Davis, School of Law
► Practical Applications/Personal Experiences of IHL, taught by Kate Jastram, University of California, Berkeley, School of Law
► Integration of IHL in Specific Subjects, panel discussion led by Sean Watts, Creighton University School of Law
► Strategies for Expanding and Supporting the Teaching of IHL/Next Steps and Evaluation, Hadar Harris, Center for Human Rights & Humanitarian Law, American University Washington College of Law.
Application and details here; deadline for applications is September 1, 2009.
What better way to honor this month's 60th anniversary of the signing of the 4 Geneva Conventions on the laws and customs of war?

Write On! National security @ AALS

(Write On! is an occasional item about notable calls for papers.) The Section on National Security Law of the Association of American Law Schools is calling for papers for AALS' 2010 Annual Meeting this January in New Orleans, Louisiana.
The papers will be presented at the Section's session entitled "Barbarians at the Gate (or Within?): New Developments in the Detention and Prosecution of Terrorist Suspects," to be held from 10:30 a.m. to 12:15 p.m. on Friday, January 8, 2010.
The Section's call begins:

After waging the Global War on Terror for almost a decade, the United States has detained and/or prosecuted numerous foreign and domestic terrorist suspects in varied venues and under disjointed trial processes, depending upon the national status or foreign allegiance of the individual suspect, circumstances of capture, or applicability of the Geneva Conventions. The Obama Administration appears committed to bring order to the delivery of justice for those who find themselves detained and to regularize their treatment.

To aid the panel's exploration of these issus, the Section (on whose Executive Committee yours truly is proud to serve) seeks papers on any related subject. At least one panel member will be selected from the call. Submissions from junior scholars, minorities, and women are particularly encouraged. The selected paper will be published in the Journal of National Security Law & Policy, the Section’s peer-reviewed journal.

Deadline for submission of papers and/or abstracts of at least 750 words (in PDF or Word format, sent to Professor Mary-Rose Papandrea, Boston College, at maryrose.papandrea@bc.edu) is Friday, September 25, 2009. Any questions about the call itself should be directed to Section Chair, Professor Michael J. Kelly of Creighton University, at MichaelKelly@creighton.edu.

(For other AALS calls for papers, check out our Write On! series)

The Curious Case of Mohammed Jawad

Mohammed Jawad (right) apparently travelled from his native Pakistan to Afghanistan to take a job clearing mines. On or about December 17, 2002, when he was somewhere between 12 and 16 years old (prior post), Jawad was captured fleeing the scene of a grenade attack. He was accused of tossing a grenade into the window of a jeep carrying two U.S. soldiers, Sergeants First Class Michael Lyons and Christopher Martin, and their interpreter, Assadullah Khan Omerk; the three were wounded in the attack.

Upon capture, Jawad was first taken to Bagram Air Base in Afghanistan and then to the Naval Base at Guantánamo. A victim of the so-called frequent flier program, which involved waking detainees up every couple of hours to change cells, Jawad has apparently tried to kill himself while in detention by slamming his head repeatedly against a wall. His Combatant Status Review Tribunal and Annual Review Board proceedings, which confirm his status as an enemy combatant, are available here.

Jawad apparently confessed to the crime at one point, but later recanted, arguing that his confession was the result of torture. The military commission set to prosecute him has ruled it will not look at evidence produced during particular interrogations; the U.S. government recently indicated it would not seek to invoke such evidence in the habeas corpus action proceeding in federal court. (See here for the latest development in this admissibility-of-evidence issue.)

On October 11, 2007, Jawad was charged before a military commission with three counts of attempted “murder in violation of the law of war” (in violation of 10 U.S.C. §§ 950t (defining attempts) and 950v(b)(15)) and three counts of “intentionally causing serious bodily harm” (in violation of 10 U.S.C. §950v(b)(13)). “Murder in violation of the law of war” is defined by the Military Commission Act of 2006 as

(15) MURDER IN VIOLATION OF THE LAW OF WAR.—Any person subject to this chapter who intentionally kills one or more persons, including lawful combatants, in violation of the law of war shall be punished by death or such other punishment as a military commission under this chapter may direct.

The crime of intentionally causing serious bodily injury is formulated as follows:

(13) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.—

(A) OFFENSE.— Any person subject to this chapter who intentionally causes serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

(B) SERIOUS BODILY INJURY DEFINED.—In this paragraph, the term
‘serious bodily injury’ means bodily injury which involves—

(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) protracted and obvious disfigurement; or
(iv) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

His charge sheet is available here (and see prior post).

Most military commission proceedings have been suspended pending a final decision from the Obama Administration about whether to try to salvage the Bush Administration’s military commissions or transfer all prosecutable detainees to federal criminal custody. Even if the Obama Administration does fully revive the military commission scheme in some form or another, a question remains as to the legality of the charges against Jawad. Hamdan v. Rumsfeld (2006) made clear that military commissions may only assert jurisdiction over violations of the law of war. This leads to the inescapable question of whether the particular charges leveled against Jawad are in fact violations of the law of war.

The 1949 Geneva Conventions and their 1977 Protocols, the latter of which the U.S. has not ratified, set forth a number of war crimes that are prosecutable when they are committed against so-called “protected persons.” Persons protected by the Conventions are civilians and combatants who are hors de combat [outside of combat] by virtue of illness, injury, capture, or surrender. These “grave breaches” of the treaties include:
► wilful killing,
► torture or inhuman treatment, including biological experiments,
► wilfully causing great suffering or serious injury to body or health,
► unlawful deportation or transfer or unlawful confinement of a civilian,
► compelling a protected person to serve in the forces of a hostile Power,
► wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention,
► taking of civilian hostages, and
► extensive destruction and appropriation of civilian property, not justified by military necessity and carried out unlawfully and wantonly.

Combatants who are active and thus not hors de combat do not constitute protected persons; accordingly, they cannot be the victims of grave breaches. Additional war crimes exist in customary international law and trace their provenance to the Hague tradition of international humanitarian law concerned with regulating means and methods of warfare. Certain violations of the regulations appended to the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land — including killing or wounding treacherously, employing weapons that cause unnecessary suffering, bombarding undefended towns, and pillage — are, for example, prosecutable as war crimes before federal courts pursuant to the War Crimes Act. By now, most Geneva and Hague crimes have been the subject of war crimes trials before the ad hoc criminal tribunals.

Attacking a privileged combatant (or “lawful combatant” in the lexicon of the Military Commissions Act) is not, in and of itself, a war crime so long as proportionate force and permissible weapons are used (i.e., weapons not intended to cause unnecessary suffering such as asphyxiating gases). Indeed, attacks between privileged combatants are the very essence of warfare. An attack on a privileged combatant is not a war crime even if perpetrated by an unprivileged combatant, such as Jawad is alleged to be. To be sure, there are consequences within the law of war when unprivileged combatants directly participate in hostilities. (See Article 51(3) of Protocol I and Article 13(3) of Protocol II — protecting civilians from attack unless and for such time as they take a direct part in hostilities). In particular, when unprivileged combatants directly participate in hostilities without the privilege of doing so, they no longer benefit from civilian immunity and are subject to attack. Such individuals can also be captured and prosecuted for violations of the operative domestic law (such as murder, assault, battery, reckless endangerment, and mayhem). Or, they can be prosecuted under international law for using unlawful weaponry. They may also be guilty of terrorism, although even this is contested.

But unprivileged combatants commit no known war crime by directly participating in hostilities without the privilege of doing so simpliciter. In other words, Sergeants Lyons and Martin would have been entitled to use deadly force against Jawad had they seen him prior to his alleged attack. The attack itself, however, does not constitute a war crime. That said, it is, undoubtedly, a violation of Afghani law and could be prosecuted as such. (It would be a violation of U.S. law only if that law applied extraterritorially).

The only crime enumerated in the Military Commissions Act that might be applicable here, although it was not charged, is perfidy (which is akin to the Hague Convention crime of killing or wounding treacherously). The MCA defines the crime of perfidy as follows:

(17) USING TREACHERY OR PERFIDY.—Any person subject to this chapter who, after inviting the confidence or belief of one or more persons that they were entitled
to, or obliged to accord, protection under the law of war, intentionally makes use of that confidence or belief in killing, injuring, or capturing such person or persons shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

The essence of perfidy is giving the impression of being a protected person (i.e., a civilian in Jawad’s case) in order to take advantage of civilian immunity while behaving like a combatant. It is not clear why the military commission prosecutors have not been charging perfidy in more unprivileged combatant cases other than because it does not carry the moral stigma, rhetorical punch, or basic name recognition of an attempted murder charge. They would do well to do so: such a charge stands on firmer legal ground than the dubious war crimes of the murder of or injury to a lawful combatant.
For more on the Jawad case, see here.

Accountability explored

Kudos to our colleague, Stanford Law's Allen S. Weiner (below left), for dispassionate analysis in The Torture Memos and Accountability, a recent ASIL Insight. (Indeed, down-the-line examination is a hallmark of this feature, making Insights an invaluable resource for anyone trying to separate facts/law from spin on issues of international law). The piece is most timely, given both the efforts to downsize detainee population at Guantánamo about which Naomi Norberg posted yesterday, and the New York Times' lead story yesterday, which asserted: "None of the Justice Department lawyers who reviewed the interrogation question argued that the methods were clearly illegal."
Addressing U.S. criminal law in his ASIL Insight, Allen:
► Explained the significance of the "reasonable reliance" defense of the common law, codified at Model Penal Code § 2.04(3)(b) and accepted in prior federal criminal law precedents. This defense could protect interrogators who, pursuant to Office of Legal Counsel opinions authorizing their behavior, committed acts amounting to torture under the Convention Against Torture and its domestic implementing statute, and that this possibility may underlie the declaration of President Barack Obama that the United States would not seek to prosecute such interrogators. (Prior IntLawGrrls posts here, here, here, and here.) (photos above right from video of interrogation of then-16-year-old Omar Khadr, detailed here and here)
► Confirmed our own conclusion that Obama's declaration does not shield persons who did not rely on the OLC memos, for the simple reason that they wrote those memos. There is no automatic bar to prosecution of lawyers for conspiracy or aiding and abetting torture, Allen explained. But he warned that any such prosecution "could prove difficult," for it would require proof beyond reasonable to doubt "that the purpose of the lawyer's advice was to facilitate conduct that the lawyer knew to be criminal," and such proof likely would be hard to come by.
Turning then to the international arena, Allen:
► Stated on the one hand that if it were refusing to prosecute "on policy grounds" alone the United States might stand in breach of the obligation under Article 7 of CAT -- which it assumed voluntarily when it ratified that anti-torture treaty in 1994 -- to try or extradite a person said to have committed torture. On the other hand, he argued, there may be no breach if the "reasonable reliance" defense grounds the decision.
Other legal considerations yet may prove pivotal. Thus Allen:
► Cited Common Article 3 of the 1949 Geneva Conventions and the statute implementing them, as well as other U.S. laws proscribing conduct the United States admitted occurred during interrogations. To this could be added the International Covenant on Civil and Political Rights, a treaty to which the United States has been a state party since 1992 and Article 7 of which also unequivocally prohibits subject to "torture or to cruel, inhuman or degrading treatment or punishment."
► Noted the potential for other accountability mechanisms in places like Spain, and concluded by reminding that

apart from the question of state responsibility on the part of the United States, it is possible that individual interrogators or lawyers may be subject to criminal prosecution outside the United States.

(The Spanish avenue may face closure, however, as we've posted.)
The Insight underscores that the final chapter in the story of accountability for post-9/11 counterterrorism practices is far from written.

Garzón goes for it

Losing jurisdiction over a civil-party complaint against 6 U.S. lawyers by the spin of a judges’ wheel in no way deterred Judge Baltasar Garzón (left) from investigating Bush Administration detention and interrogation practices.
In an auto made public this week, the Spanish judge opened an investigation into allegations of torture, made by 4 ex-detainees, over whose cases he had jurisdiction for the reason that they once were charged in Spain with criminal activity in support of al Qaeda. The 4, Garzón wrote,

claimed that they had suffered different acts of physical or psychological violence during the time of their detention in different countries, while they were under the authority of U.S. officials.

Sites named in the auto: Pakistan, Gambia, Afghanistan's Bagram Prison, and the U.S. military base at Guantánamo Bay, Cuba.
A small sampling of the acts alleged by the 4, according to the auto:
► sleep deprivation and harm to vision, both caused by cells lighted all day and all night;
► constant broadcasting of "patriotic American songs" and other loud music;
► blows to the testicles and to the head;
► forced nudity;
► introduction of water into the nostrils to the point of a sensation of suffocation;
► subjection to extreme heat or extreme cold;
► protracted confinement in a dark, underground place;
► deprivation of food;
► death threats; and
► sexual assault.
Among the legal bases for the investigation the auto cites are the Spanish penal code, the 3d Geneva Convention, and the international Convention Against Torture and its European counterpart.

It's worth noting that the new case is broader than likely would have been authorized under the civil-party complaint. Whereas the latter named 6 Bush Administration lawyers, Garzón's auto makes clear that "intellectual authors" as well as "material implementers" of abuse, those who "authorized" abuse as well as those who "practiced" it, are fair game for his investigation. And if the Spanish court were to secure the presence of any suspect -- a big if -- personal jurisdiction would lie not only on ground of universality, but also that of passive personality. That's because among the 4 alleged victims are 2 nationals: a Spanish citizen and a Moroccan long resident in Spain.

The sweep of this new case ought not to surprise.

Garzón, of course, is the Madrid-based investigating judge whose name has been a human-rights-household word ever since October 1998, when Garzón asked Britain to arrest former Chilean dictator Augusto Pinochet and then extradite him to Spain to face charges that he was responsible for torture of some Spaniards and many Chileans during his rule. Eventually, in January 2000, Britain’s executive refused to extradite notwithstanding a House of Lords ruling authorizing the transfer.
What had taken place in between – as Garzón described at a Stanford Law panel in which IntLawGrrls Naomi Roht-Arriaza and yours truly took part a while back – was an elaborate game of legal cat and mouse. Spain’s executive, which opposed the pursuit of Pinochet, did little to help Garzón as he went forward. At times Garzón enlisted the language skills of family members in order to secure translations of documents that had been delivered to him in English.

The cat and mouse game may resume, given that Spain's Attorney General has publicly opposed investigation by his country's judiciary of the United States' executive officials.

What might be the endgame?

It is true that Pinochet never did appear before a Spanish judge. But it's also true that when Pinochet went home he found that he was disgraced. By the time Pinochet died in 2006, lawsuits abounded against him. Chilean courts had stripped him of immunity. And he had twice endured questioning by an investigating judge -- not Garzón but Juan Guzmán (below left), a Chilean who sought to link him to some of the same crimes once at issue in Spain.
A full account of the facts of Pinochet likely will give cold comfort to the objects of Garzón’s newest investigation.

Closing Guantánamo: Legal and Policy Issues

It was a pleasure to see so many Int’l L Grrls (and their readers) at the American Society of International Law Annual Meeting this weekend. A couple of us will be offering "reports" from the conference. Here, I’ll present a summary of one of the more eagerly awaited panels on “Closing Guantánamo: Legal and Policy Issues" chaired by Bobby Chesney (Wake Forest). The panelists were David Glazier (Loyola of L.A.), Deborah Pearlstein (Princeton), Joanne Mariner (Human Rights Watch), and Glenn Sulmasy (U.S. Coast Guard Academy). A discussion of the crux of the problem of detention in non-international armed conflicts going forward will appear in a subsequent post. (Apologies if I jhave mischaracterized anyone’s position; clarifications welcome).

Chesney introduced the panel by describing the two executive-order task forces currently at work on detainee issues.

• One is reviewing detainee files case-by-case with an eye toward reaching individualized dispositions.
  
• The other will take a longer perspective and attempt to devise a detainee policy for the future.
  

In the meantime, the administration has been forced to take positions (see post here) in habeas cases pending in federal courts (see post here).

Prof. Glazier (right) emphasized that the decision to close GTMO was the easy part; the “how” is where the challenge lies. Glazier identified three potential outcomes:

1. release,
2. prosecute (or transfer for prosecution), or
3. continue to detain.

Of the 240 or so detainees, about 60 men have already been cleared for release. In his estimation, about 80 individuals might still qualify as “high value,” but it is likely that most are minor functionaries along the lines of Salim Hamdan. Federal courts represent the only place to credibly prosecute individuals for whom there is sufficient evidence. Anything short of an Article III process will be perceived as a shortcut. Glazier raised concerns about the transfer paradigm: if the United States can’t fairly prosecute them here (for lack of admissible evidence or viable substantive charges), then it is unlikely other states could either. To transfer detainees for prosecution would put the detainees at risk of further detention without trial or of sham proceedings that might violate international human rights protections.

He acknowledged that some subset of detainees cannot be tried (because any evidence against them was obtained by torture or mistreatment, any crime for which they might be tried was enacted after they acted, or because there is simply no or inadequate evidence available against them) but remain dangerous. For this group, the U.S. should establish a preventive detention regime that is based on the law of war (to which GTMO doesn’t come close to complying). This paradigm must reflect the model of a communal camp setting with access to the outside world, etc.

Deborah Pearlstein (right) emphasized that the problem of what to do with GTMO is to a certain degree sui generis, because our options are informed and limited by what we’ve already done (which includes the commission of acts of torture, incommunicado detention, removal from battlefield, the failure to hold GC III Art. 5 hearings, etc.). For these individuals, there may be no good options available, so we’re left to sort through the “less bad” options. In so doing, we should attempt to do as little violence to international law as possible. This process of resolving GTMO should be cabined off from the larger problem of defining a detention process going forward; we can’t let the hard case of GTMO make permanent bad law or policy for the future.

Taking off on Glazier’s three categories of detainee, Pearlstein noted that the individuals slated for release represent a diplomatic, rather than a legal, problem. Many of these individuals may not be able to be sent home because of widely-shared treaty obligations under the Refugee or Torture Conventions. For those individuals who might have been prosecutable, there were more options available upon capture (courts martial, legitimate and lawful military commissions). Now, we’re left with federal courts as the only legitimate option.

For those who present security risks and might need to be further detained, the law of war may not provide any affirmative authority to detain individuals (either combatants or civilians who directly participated in hostilities) who were captured either in the context of a non-international armed conflict (NIAC) or outside of a conflict situation entirely (such as in Zambia). In addition, the Authorization to Use Military Force (AUMF) may not constitute sufficient domestic authority to detain these individuals. Thus, we would need express domestic authority in the form of new legislation to continue to detain them.

One positive outcome of the recent Obama administration filing beyond the welcome demise of the "enemy combatant" nomenclature is the good faith statement that the Administration intends to be in compliance with IHL. IHL quite clear and detailed on what detention authority exists in IACs. This, however, brings into sharp focus the need to look closely at the nature of the authority to continue to detain GTMO and other detainees given that the law governing NIAC provides no treaty-based authority to detain, on the presumption that domestic claw would provide the necessary authority outside of a state-to-state conflict where international law would be necessary.

Anticipating arguments by Commander Sulmasy, Pearlstein opposed the establishment of any separate national security court on the grounds that such a system won’t solve the GTMO problem and could never be established in time, given the legal challenges that would inevitably follow. She referenced a Human Rights First study demonstrating that the federal courts are sufficiently flexible to handle terrorism cases.

Commander Sulmasy (left) emphasized that even when we resolve the GTMO cases, there are hundreds of detainees at Bagram Air Base whose lawyers are also attempting to get into the U.S. court system. We still have not yet fully resolved the question of whether the situation with Al Qaeda is an armed conflict or a law enforcement problem or some hybrid of the two. The typical Al Qaeda member is part-international criminal, part-warrior.

Although he was thin on details, Commander Sulmasy advocated a hybrid national security court that would combine aspects of the military commission scheme as it was originally conceived (to dispense rapid justice) and Article III courts. (Sulmasy conceded that the military commissions, which should have begun trials in 2003, never achieved their intended purposes and that his support for the existing system eroded over time). This might involve proceedings that would be closed to the public (but not the detainee). This would not constitute preventative detention, as the process would be an adjudicative one rather than an adaptation of the Combatant Status Review tribunal system. Sulmasy questioned the ability of Article III courts to deal with terrorists and unprivileged combatants, noting that many of the terrorism cases reported on to date preceded 9-11.

Joanne Mariner (left) agreed that the immediate decision to close GTMO represented a meaningful break with the most reviled of the many unsavory Bush Administration policies. She was concerned, however, that some of the solutions being put forward are—and will be perceived to be—mere tinkering with the existing machinery. (She specifically noted the Obama Administration’s deliberate use of the term “refining” in its pronouncements). This, she emphasized, will not fool our European allies or the Muslim world for that matter, which may actually be the most important audience to convince that we’re genuinely changing our approach to fighting terrorism. In her estimation, we need the Muslim world’s support to fight terrorism effectively. In this regard, Mariner was disappointed in the most recent filing in the detainee litigation which, while it rejected the rhetoric of the Bush administration and laid to rest the controversial and unsupported term “enemy combatant”, resulted in only a slight modification to the Bush approach to preventative detention in practical effect.

With respect to the detainee categories, those who have been implicated in crimes should be prosecuted. The federal courts have already demonstrated that they are capable of this and may, indeed, have been overly harsh in certain terror cases (e.g., Padilla). The indictment of al Marri was an encouraging sign that President Obama has put some faith in the federal court system to deal with these cases.

Of the persons who cannot be tried and should be released, there is the concern that many of the GTMO conditions will be replicated overseas. Human Rights Watch researchers, for example, interviewed high government officials in Yemen, who implied that the Bush Administration had sought to create a proxy detention regime there with only a thin veneer of rehabilitation. In order to convince our allies in Europe to help us resettle these individuals, we’re going to have to set good faith example and accept some of these individuals into the United States. Immediately resettling the Uighurs, for example, would have jump started resettlement negotiations with Europe.

In terms of the problem of characterizing the current situation, Mariner noted that the Bush Administration capitalized on ambiguity between the formal war in Afghanistan and the so-called “global war on terror.” She noted that although NATO passed a resolution endorsing a military response to 9/11 (one that was focused on Afghanistan just as the AUMF), the UN Resolutions subsequent to the attacks all have Al Qaeda in mind and call for traditional law enforcement responses with no reference to war rhetoric. Indeed, Mariner noted that many of our closest allies have argued that applying a war paradigm to the global terrorism challenge is counter-productive and feeds into perception of the Muslim world that this is a war on Islam.

The rest of the panelists opposed Commander Sulmasy’s proposal for any sort of a national security court. Glazier acknowledged that terrorists have dual characteristics (criminal/warrior), but queried whether we need new law and institutions to bridge this gap. Depending on the circumstances, we can freely choose between existing bodies of law to respond to dangerous individuals, as long as we faithfully adhere to domestic and international legal standards. He is concerned that national security courts will inevitably involve departures from core due process protections that we hold dear out of mere expediency. Otherwise, why would we need them? He is also concerned that if we make arguments about why we need such courts based on the difficulty of invoking standard criminal law processes, it will be too easy to expand this “special” process to other “tough cases,” such as drug smugglers and organized crime members.

On the question of whether we need a more formal preventative detention regime, Pearlstein noted that many human rights organizations do not categorically oppose security detention. (Indeed, it is affirmatively authorized in the 4th Geneva Convention for non-combatants who post security risks). The question remains: is such a system sensible as a matter of US policy and counter-terrorism strategy? This requires a consideration of whom we are talking about preventively detaining. Where people are apprehended engaging in violent acts, they can be prosecuted for such crimes as providing material support for terrorism, even if the acts in question were committed extraterritorially. So, any preventative detention regime would likely be used for mere members of dangerous groups for whom there is insufficient evidence that they actually did anything. Detaining and thus incapacitating a marginally low-level and expendable Al Qaeda member will serve some minor specific deterrent effect. If we detain too many of his brethren, however, it might also risk radicalizing his inevitable replacements. The long-term strategic rationale for such a system is questionable.