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Article Excerpt
I. DETAINING SUSPECTED TERRORISTS: SCENARIOS UNDER INTERNATIONAL LAW
On what grounds, by what procedures, and within what limits under international law, may the United States lawfully detain suspected terrorists in order to interrogate or prosecute them, or to prevent them from planning future attacks? The actual detention practices of the United States in response to the terrorist attacks of September 11, 2001 (9/11) are now largely matters of public record. Suspected terrorists have been detained in the United States for purposes of deportation and criminal justice (whether as suspects or as material witnesses). They have been captured overseas on the battlefield, in occupied territory or elsewhere, and then detained by the military or CIA for purposes of interrogation and preventive security. A minority have eventually been held for military trial. Detentions of suspected terrorists have taken many forms, including the following examples.
Prosecutions. Caught on a flight to the United States with a lit match in his explosive-laden sneaker, so-called "shoe bomber" Richard Reid pied guilty and was sentenced to prison. (1) Al Qaeda collaborator Zacarias Moussaoui pled guilty to conspiracy to commit terrorist offenses and was sentenced to life in prison. (2) However, most successful federal prosecutions since 9/11 have targeted not terrorists, but persons who provide material support to terrorist groups. (3) These prosecutions have been relatively successful, despite recurrent problems of prosecutorial misconduct (4) and difficulties in reconciling the rights of the accused with the government's need to maintain confidential information. (5)
Material Witnesses. Where additional time was needed to investigate a suspect, prosecutors appear to have held some suspects temporarily as material witnesses in other criminal cases. (6)
Deportation. More than a thousand foreign citizens were detained in the United States in connection with the 9/11 investigation, including nearly 800 for civil immigration violations. (7) Even after immigration judges ordered some of them deported, some were kept in continued detention pending FBI clearance. (8)
Battlefield. The military detained suspected Taliban and Al Qaeda fighters at Bagram Air Base and elsewhere in Afghanistan. (9)
Occupied Territory. The military detained suspected terrorists and other suspected security risks (along with common criminals) at Abu Ghraib and other prisons in Iraq. (10)
Military, Detention for Prosecution. The military detained at least two dozen, and perhaps as many as 80 prisoners, at the United States Naval Base in Guantanamo Bay, Cuba, for prosecution before military commissions, (11) As of this writing, military commissions have tried only two prisoners, one of whom pled guilty and the other of whom was convicted only of a lesser charge. (12)
Military Detention of Foreign Citizens for Security and Interrogation. The military detained hundreds of other suspected foreign terrorists at Guantanamo, (13) most captured in the Afghan war or neighboring Pakistan, but some picked up in countries far from any recognized battlefield. (14) These prisoners were held without charges and without access to lawyers or courts until the Supreme Court ruled in 2004 that federal courts have jurisdiction to hear petitions for habeas corpus brought on their behalf. (15) Many were then afforded access to counsel (16) and to formal administrative review by Combatant Status Review Tribunals composed of military officers. (17) In 2005 and 2006, however, Congress purported to deny them habeas corpus, offering instead an alternative statutory mechanism for limited judicial review. (18) In 2008 the Supreme Court ruled that foreign citizens detained as enemy combatants at Guantanamo are constitutionally guaranteed the privilege of habeas corpus, and that the alternative statutory review was not an adequate substitute. (19) The Court then vacated and remanded a separate case, involving the adequacy of the administrative review, to the United States Court of Appeals for the District of Columbia Circuit. (20) As of mid-July 2008 some 265 prisoners were still detained at Guantanamo. (21)
Military Detention of U.S. Citizens. The military also attempted to detain at least two U.S. citizens indefinitely on security grounds, without criminal charges and without access to lawyers, at military brigs in the United States. (22) That practice ended after the Supreme Court held in 2004 that due process of law requires, at minimum, that detained Americans be informed of the grounds for their detention and have an opportunity to rebut the grounds before an impartial decision maker, (23) possibly with assistance of counsel. (24)
Secret CIA Detention Overseas. The CIA detained, and continues to detain, suspected Al Qaeda leaders and top operatives incommunicado in secret detention centers overseas. (25)
Except for detentions pending deportation, the purposes of these post-9/11 detentions fall into two broad categories: criminal law enforcement and preventive detention for security and intelligence purposes. This article analyzes the permissible grounds, procedures and conditions of both categories of detention under International Human Rights Law (IHRL) and (in cases of armed conflict) under International Humanitarian Law (IHL). (26) Where IHRL allows States to "derogate" from, that is, to suspend, the fight to personal liberty, in war or other national emergency, (27) the limits on detentions under derogation are analyzed as well.
The focus of this article is on detention. Related issues, such as the rights of suspected terrorists in criminal trials, (28) or their right not to be sent to countries where they would likely be tortured, (29) are not addressed.
There are four main international law settings in which suspected terrorists may be detained. They are: (1) peacetime, (2) public emergencies short of war, in which States derogate from the right to liberty, (3) armed conflicts of an international character, and (4) armed conflicts of a non-international character. IHRL governs the first two settings: peacetime and public emergencies short of war. IHRL and IHL, read together and in harmony, govern the other two situations: armed conflict, both international and non-international. Thus, there are basic substantive and procedural international law norms that govern detentions of suspected terrorists in all situations. (30)
Part II below identifies the sources and applicability of relevant IHRL and IHL. Part III summarizes the "consensus" of IHRL and IHL instruments governing detentions of suspected terrorists in all four settings. Part IV addresses detentions for purposes of criminal prosecution. Part V considers preventive detention for security purposes. Part VI discusses minimum requirements for treatment of all detainees and the right of compensation for all persons unlawfully detained. A concluding section reviews the options for detaining suspected terrorists, and asks whether preventive detention for security purposes, outside the context of armed conflict, should be permitted at all.
II. RELEVANT INTERNATIONAL LAW
This article derives the elements of the IHRL consensus on norms governing detention of suspected terrorists from the following instruments.
* International Covenant on Civil and Political Rights (ICCPR), (31) joined by 162 State Parties including the U.S., (32)
* Universal Declaration of Human Rights (33) (UDHR) (largely evidence of customary international law), (34)
* United Nations Convention against Torture and Cruel, Inhuman and Degrading Treatment or Punishment (CAT), (35) joined by 145 State Parties including the U.S., (36)
* United Nations Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment (37) (BP) (arguably evidence of customary international law), (38)
* Regional instruments:
** European Convention on Human Rights (ECHR), (39) joined by 47 State Parties, (40)
** American Convention on Human Rights (ACHR), (41) joined by 24 State Parties, (42)
** American Declaration of the Rights and Duties of Man (ADHR), (43) an authoritative interpretation of the human rights commitments in the Charter of the Organization of American States (OAS), (44) a treaty to which the U.S. is a party; the Declaration is used by the Inter-American Commission on Human Rights as the yardstick to monitor American States that are not parties to the ACHR, (45)
** Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas (BP Americas), adopted by the Inter-American Commission on Human Rights in 2008, (46)
** African Charter on Human and Peoples' Rights (ACHPR), (47) joined by 53 State Parties. (48)
In international armed conflict, this IHRL consensus is complemented by two IHL treaties: the Fourth Geneva Convention of 1949 on Protection of Civilians (Geneva IV), (49) joined by 194 State Parties including the U.S., (50) and Additional Geneva Protocol I of 1977 (Geneva Protocol I), (51) with 167 State Parties. (52) During non-international armed conflict, Common Article 3 of the 1949 Geneva Conventions (Common Article 3) (53) and Additional Geneva Protocol II of 1977 (Geneva Protocol II), (54) with 163 State Parties, (55) govern in addition to IHRL.
IHRL and IHL apply in differing ways in the four international law settings. During peacetime IHRL applies to State Parties that have joined IHRL treaties, and to other States to the extent IHRL norms are recognized as customary international law. Despite unpersuasive objections by the United States (56) and Israel, (57) IHRL governs detentions of suspected terrorists outside a State's territory, so long as the detainees are within the effective custody and control of the State. (58)
During public emergencies short of armed conflict, IHRL treaties continue to apply, subject to any derogation from the right to liberty lawfully made by State Parties. (59)
During armed conflict, not only IHL, but also IHRL, applies. Contentions to the contrary by the United States (60) and Israel (61) are not persuasive. For example, two IHRL treaties, the ECHR and ACHR, both expressly permit derogations from certain human rights in time of war. (62) If they did not apply in war at all, no such treaty provisions would be necessary. In addition, the Convention Against Torture, to which the U.S. is a party, expressly prohibits torture even in a "state of war." (63)
After canvassing the authorities, the International Court of Justice explained the relation of IHRL and IHL in international armed conflict as follows: some rights are exclusively matters of IHL, some are exclusively matters of IHRL, and some are matters of both IHL and IHRL. Where both apply, IHL supplies the lex specialis, (64) that is, the specific norm that prevails in the face of a more general IHRL norm. (65)
However, the fact that IHL is lex specialis does not mean that it always prevails over IHRL. IHL not only sets its own standards for detention, but also expressly adopts IHRL norms, where those set higher bars. The "minimum" (66) IHL requirements for detention are set forth in Article 75 of Geneva Protocol I, a treaty ratified by the overwhelming majority of States. (67) Article 75 also represents customary international law, binding even those States, including the U.S., which are not parties to Geneva Protocol I. (68) It appears in a section of Geneva Protocol I whose rules are "additional" to "other applicable rules of international law relating to the protection of fundamental human rights during international armed conflict," (69) meaning IHRL. (70) Moreover, it provides that it does not limit "any other more favourable provision granting greater protection, under any applicable rules of international law...." (71)
Thus, whenever IHRL grants greater protection than IHL to persons detained in international armed conflict, IHL mandates that the detainees benefit from any more favorable provisions of IHRL.
In non-international armed conflict, Geneva Protocol II recognizes that persons may be deprived of liberty for reasons related to the armed conflict, (72) and mandates that they be treated humanely, (73) but does not specify the grounds or procedures for detention. In the resulting absence of IHL lex specialis, IHRL norms govern the grounds, substantive limits and procedures for detention in non-international armed conflict.
This conclusion is reinforced by the Preamble to Geneva Protocol II, which recalls that "international instruments relating to human rights offer a basic protection to the human person." (74) The authoritative Commentary by the International Committee of the Red Cross (ICRC) notes that such human rights instruments include the ICCPR, the Convention Against Torture, and regional human fights treaties. (75)
In war or other emergency threatening the life of a nation, some IHRL rights--such as the fights not to be tortured or enslaved--cannot be suspended. (76) However, States may derogate from certain rights, (77) subject to the following limitations.
* Only certain rights are subject to derogation. These include the right to liberty of person, (78) but not the fight of the detainee to seek prompt judicial review of the lawfulness of the detention. (79)
* The nature, geographical scope and duration of the derogation must be no more than "strictly required" to meet the exigencies of the situation. (80)
* The derogation must be non-discriminatory. (81) For example, it may not impermissibly discriminate against foreign citizens. (82)
* The derogation must not violate other norms of international law, (83) such as IHL, which continues to apply even if a State derogates from an IHRL treaty guarantee of the fight to personal liberty.
* The derogating State must file a document with the treaty depository informing other State Parties of the articles from which it has derogated and the reasons why. (84)
Because of these restrictions on derogation, as discussed below, derogating from the right to personal liberty does not give a State carte blanche to detain suspected terrorists.
III. CONSENSUS OF IHRL AND IHL NORMS ON DETENTION
A consensus of norms in IHRL instruments, supplemented by IHL norms during armed conflict, provides a minimum core of protections for persons detained as suspected terrorists, in each of the four international law settings. (85) These core protections are as follows.
Grounds. (86) Under IHRL the detention must not be arbitrary, and must be based on grounds previously established by law. Under IHL, detentions of foreign citizen non-combatants are permitted only where "absolutely necessary" to security, (87) or where "necessary, for imperative reasons of security." (88)
Substantive Restrictions. (89) The detention must be proportional, that is, no more restrictive or prolonged than strictly required by the exigencies of the security situation. It must also be non-discriminatory, including as between citizens and foreigners.
Procedures. (90) The detention must be based on procedures previously established by law and:
* Must be registered,
* Must not be incommunicado for more than a few days,
* Must inform the detainee of the reasons for detention and, if she is foreign, of her fight to communicate with her consulate for assistance,
* Must be subject to prompt and effective judicial control, at least on the initiative of the detainee, and
* Must afford the detainee a fair judicial hearing on the lawfulness of the detention.
Treatment of Detainee. (91) The conditions of detention must be humane, and the detainee must be provided with access to regular medical evaluation and treatment.
Compensation. (92) The detainee must have a right to be compensated for unlawful detention.
Other International Law. Under IHRL the detention must comply with all other applicable requirements of international law, including IHL in armed conflict. (93) Likewise, under IHL the detention must respect any "more favourable" provisions of IHRL. (94)
Additional safeguards protect persons detained for purposes of criminal prosecution. They must be promptly informed of the criminal charge, (95) their detention must be no more restrictive or prolonged than justified by such "essential reasons" as the risks of flight, repetition of the offense, or interference with justice, (96) and they must in any event be brought to trial with reasonable expedition. (97)
In Europe, additional restrictions are imposed on preventive detentions for security purposes. Such detentions are permitted in Europe, if at all, only by temporary and limited derogation from the right to liberty. (98)
The following Parts elaborate on the legal and policy implications of the consensus of IHRL and IHL norms in the contexts of detention for criminal law enforcement (Part IV) and preventive detention for security purposes (Part V).
IV. DETENTION OF SUSPECTED TERRORISTS FOR PURPOSES OF CRIMINAL PROSECUTION
A. UNDER IHRL
Prosecution of suspected terrorists, as opposed to prosecutions of those who provide "material support" to terrorist groups, (99) can be exceedingly difficult for a number of reasons. The grounds for suspicion may be based on inadmissible intelligence information. For instance, intelligence agencies may be reluctant to allow prosecutors to reveal the nature and targeting of electronic and other means of surveillance, or the identities of human intelligence agents, or the fact that these agents have infiltrated or otherwise have access to information about terrorist groups. Information received from foreign intelligence agencies may have been procured by torture, rendering it inadmissible in court. (100) Secretive terrorist operatives may leave little evidentiary trail, perhaps enough to raise a reasonable suspicion but not enough to show probable cause, let alone guilt beyond a reasonable doubt. Interrogation may be frustrated because terrorists are trained to resist standard interrogation techniques. Witnesses may fear to testify. Proving international terrorism may require witnesses from overseas, who may be unwilling or unable to come to court.
Prosecutions do sometimes succeed. Shoe bomber Richard Reid, Zacarias Moussaoui, and the 1993 World Trade Center bombers were all convicted and sentenced to prison. (101) So, too, was Jose Padilla, although the wide conspiracy net used to convict him, on very little evidence, is troubling. (102) German courts eventually found a way to convict Mounir El Motassadeq, after initially acquitting him, because the U.S. refused at first to provide statements from Al Qaeda prisoners in secret CIA prisons, before finally agreeing to provide summaries of the interrogations. (103) Still, the difficulties remain daunting.
When prosecutions are attempted, pretrial detention must comply with the consensus of IHRL and IHL norms summarized in Part III above. Most countries easily meet the requirement that the grounds (104) and procedures (105) for pretrial detention be previously established by law. Prosecutions in US federal court plainly meet these requirements. (106) Detention for trial by military commission, however, may not. (107)
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