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September|October 2004
When to Hold 'Em By Thomas F. Powers
Stealing the Show By Emily Bazelon

When to Hold 'Em

The U.S. should detain suspected terrorists—even if it can't make a case against them in court.

By Thomas F. Powers

A FORTHRIGHT POLICY OF PREVENTIVE DETENTION is an idea whose time has come. This is the most important implication of the historic rulings issued by the Supreme Court in the enemy combatant cases of Hamdi v. Rumsfeld, Rasul v. Bush, and Rumsfeld v. Padilla. In Hamdi, five justices agreed that the president has the authority to detain terrorists, even when they are not charged under the criminal law and are not held as either POWs or war criminals under international law. But the court ruled that detainees who are United States citizens must be afforded greater due process protections than the Bush Administration has been willing to grant them. But the procedures called for by the court are themselves sketchy, and they relate only to the initial determination of a detainee's status.

The Administration, first burdened by Abu Ghraib and now chastened by the Supreme Court, is reconsidering its policies. It has created an office charged with reviewing annually the detention of enemy combatants. Its proposed procedures, supplemented by more ambitious guidelines from the court, are a good start, but what's needed is a more comprehensive framework, authorized by Congress. America needs a USA Patriot Act for preventive detention. To get there responsibly, we should look to other countries, especially England and Israel, which have crafted preventive detention policies with meaningful safeguards for due process.

PREVENTIVE DETENTION MEANS THE HOLDING OF AMERICAN citizens against their will, precisely because authorities do not have sufficient evidence to prove in a court of law that the citizens have committed a crime. Or when aliens detained outside the United States are involved, it means the holding of individuals neither as POWs nor as war criminals, the two categories of wartime detention recognized under international law. The last time the United States tried something like preventive detention was during World War II, with the notorious internment of some 120,000 innocent Japanese-American civilians. Doesn't the shame of Korematsu still burn? How can that sort of detention be the take-home message of the recent Supreme Court rulings, which have been widely hailed as civil libertarian victories?

Preventive detention is understandably unsettling to Americans. The view favored by many civil libertarians—that the country could adopt a "criminal law purist" approach of adhering to the norms of criminal due process—has been put forth most prominently by Justice Antonin Scalia in his dissent in Hamdi. "If Hamdi is being imprisoned in violation of the Constitution (because without due process of law), then his habeas petition should be granted;" Scalia wrote, "the executive may then hand him over to the criminal authorities, whose detention for the purpose of prosecution will be lawful, or else must release him."

The purists can point to at least one modern liberal democratic country, Italy, that has used this approach successfully. The Italian government combated the Red Brigades and other terrorist groups while making only modest alterations to its system of criminal justice, mainly by enhancing police investigative powers and criminal penalties. Though the Red Brigades did not successfully advance revolutionary Marxism-Leninism in Italy and eventually faded into oblivion, terrorism in Italy during the 1970s and early 1980s was a serious matter, involving thousands of bombings, hundreds of civilian deaths, and the kidnapping and assassination of prominent businessmen and government officials, including former Prime Minister Aldo Moro.

Italy had no special interrogation policy for terrorists, developed no special courts or procedures to try them, and used no preventive detention system to get around safeguards of the criminal justice system. The police patiently gathered evidence of crimes in order to incapacitate those who committed them. If officials did not gather evidence sufficient for a criminal conviction, the terrorism suspects were released.

But the Italian model cannot serve our needs. On September 11, the United States suffered roughly ten times the number of terrorism fatalities that Italy suffered over the span of the 15 years of attacks from the Red Brigades. Like terrorists in Northern Ireland, Spain, and West Germany, the Red Brigades used terror to effect political ends. These groups sometimes targeted civilians, but they did not seek to inflict mass civilian casualties in the manner of the current al Qaeda campaign.

The sheer lethality of the September 11 attacks, and the threat of similar attacks in the future, means that the United States needs a different sort of approach. A number of prominent legal scholars and government officials, ranging from the liberal constitutional expert Laurence Tribe to the conservative federal judge Michael Chertoff, have begun to give serious consideration to the idea of preventive detention. Even Justice John Paul Stevens, who supports civil libertarian positions, admitted in the Padilla case that "[e]xecutive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction."

What about international law? The point is not that the United States should defy international law. It must not. But under the Geneva Conventions terrorists do not fit into the only two categories provided, POW or war criminal. Preventive detention responsibly addresses the question of what to do with fighters who do not wear uniforms or otherwise distinguish themselves from civilians in combat.

The government's critics explain the Administration's current policy either in terms of some institutional perversity (executive overreach) or by reference to some pathological "authoritarianism." But the failure thus far to devise a comprehensive policy reflects, at least in part, a liberal democratic hesitation in the face of a practice that appears to be fundamentally illiberal. The time has come to face terrorism squarely, and to craft a legal response that reflects our constitutional principles.

EXISTING U.S. DEPARTMENT OF DEFENSE POLICIES extend some limited procedural rights to detainees. Most notable is the annual status review of every individual detained by the recently created Office for the Administrative Review of the Detention of Enemy Combatants. This, together with Justice Sandra Day O'Connor's insistence in Hamdi that all detainees be granted a hearing before a "neutral decisionmaker," and with the aid of legal counsel, provides a starting point.

How we proceed from there should be decided in light of the experience of other countries that have struggled to combat terrorism. If preventive detention is justified in large measure by the scope and intensity of the actual threat of terrorism, then England and Israel both surely qualify. More than 3,000 terrorism deaths are associated with the conflict in Northern Ireland, and more than 1,200 people have been killed by terrorists in Israel in the past decade alone.

Great Britain's indefinite internment policy, formalized in 1973 following the recommendations of a famous report authored by Lord Diplock on the situation in Northern Ireland, was allowed to lapse in 1980. Lord Diplock was reacting to a legally murky use of police power, one he termed "imprisonment at the arbitrary Diktat of the Executive Government." Though his reform proposal, incorporated in the 1973 Northern Ireland (Emergency Provisions) Act, made preventive detention a matter of administrative, not judicial, oversight, the new policy reasserted civilian control and included due process safeguards. No less a figure than the secretary of state for Northern Ireland made initial detention determinations. Within a period of 28 days, an administrative official would then review each case with the option to extend the detention. Those detained also had a right to be informed of their status hearing in advance, and they were granted the right to an attorney paid for by the government. After September 11, in the 2001 Anti-terrorism, Crime and Security Act, a limited version of the internment policy, applying only to non-citizens, was reintroduced in Britain.

In 1948 Israel inherited from the British an unofficial detention policy that was formally articulated in the 1979 Administrative Detention Law. Partly in response to provisions of international law, administrative detention is justified, as it is in England, only under a state of emergency—a status Israel has invoked and lived under continuously since 1948. The minister of defense must authorize each case. Detention orders are issued for six months at a time and may be renewed at the end of that period. In Israel the civilian courts provide oversight, first by "confirming" the initial detention order and then by reviewing the status of each detainee every three months, overlapping with the review, every six months, by the minister of defense. Detainees have the right to an attorney, and the right to be present at their confirmation hearing and at all subsequent judicial proceedings.

THE POLICIES OF BRITAIN AND ISRAEL each moved in the same direction: toward greater legal clarity and toward more extensive due process protections. The United States should take advantage of those countries' experiences to find ways to build due process into preventive detention. Current U.S. policy reflects a reactive and piecemeal approach. Designing a preventive detention policy means, in effect, creating a separate legal system that applies only to a small class of persons, a system running parallel to criminal law on the one hand, and to the laws governing POWs and war criminals on the other.

A comprehensive policy must specify standards and procedures in six key areas: 1) preliminary screening and determination of status; 2) a hearing at which detainees may challenge their status; 3) the right of appeal; 4) periodic reconsideration and renewal of status, or release; 5) general legal support, including notification and access to attorneys, evidence, and witnesses; and 6) clear standards of treatment for detainees. Some of this is already in place in Defense Department practices, but it needs to be pulled together, clarified, and made explicit for anyone who wants to know about the country's policy.

The decision as to whether individuals should be held in preventive detention can be made rigorous in a number of ways. The involvement of high government officials—the secretary of the navy in the new Department of Defense plan or the secretary of defense and even the president himself (who now designates enemy combatants)—would signal the seriousness of the process, and fixes accountability in a useful way.

Enemy combatants cannot be granted a "trial," since they haven't been charged with anything, but they should have the closest thing to it: a hearing at which they may challenge the government's claims and present a different account of the facts. As Justice O'Connor indicated in Hamdi, the appropriate body to oversee such a hearing might be within the executive branch, but it could also be within the federal judiciary. The hearing must be held, as O'Connor insisted, before a "neutral decisionmaker."

The right of appeal is critical to any preventive detention policy, especially for U.S. citizen detainees. Detaining Yaser Hamdi and Jose Padilla without charging them with any crime creates a greater, not lesser, obligation to justify their detention. Appeal could be made to another administrative body, or to the federal court system; a special court could serve a useful role here. In some cases, appeal or review of detention could be made automatic.

Whether it occurs every three months (as in Israel), every six months (as in Britain), or once a year (as in U.S. policy as it stands now), some formalized process for re-examining each individual case for status renewal (or release) is essential, especially in an open-ended effort like the current war on terror. Having primary responsibility for this policy, the executive branch could provide for the review process internally. Another option is a policy of external review by the courts, as is the case in Israel.

Several basic procedural rights accompany many of the steps in this process. The right to know both one's status and any procedure to challenge it, now mandated by Hamdi, seems elementary. A related practice, present in the current Department of Defense plan, is the notification of both the family and home country of any detained individual. Also basic is the right to be present during status hearings. The right to an attorney paid for by the government is already granted, in some instances, in U.S. policy (though not in the Defense Department plan, which grants instead the assistance of an officer who is not an attorney). Finally, if the rights to a hearing and to some sort of appeal are to be meaningful, access to evidence and witnesses, where practicable, must also be granted.

Under certain circumstances, some of these protections might need to be suspended in the name of security. But to ensure that such exceptions do not undermine the legitimacy of the preventive detention system, any decision to make such an exception to the agreed-upon procedural safeguards must itself be governed by clear standards and authorized by the highest officials. It might also be subject to automatic judicial review. The exemption process would likely need to be carried out in secrect, at least in the short run. But such a procedure should go as far as possible to provide safeguards against abuses of authority for those detained.

Finally, the standards of treatment of those held in preventive detention should be laid out in detail. Rules about the limits of interrogation must be made clear to American soldiers and civilian contract workers. Similarly, how to treat prisoners held under the non-POW status should be detailed, with reference to which provisions of the Geneva Conventions do and do not apply. Israel, for example, grants better living conditions and greater privileges to administrative detainees than it does to criminal prisoners, since the former are held under a preventive, and not a punitive, regime.

THE MOST IMPORTANT AVAILABLE CHECK is Congressional involvement, through legislation and oversight. The imprimatur of Congress is all the more important now that four of the nine justices of the Supreme Court have stated, in Hamdi, that the current enemy combatant policy is essentially unconstitutional. Congress's silence to date on the issue has been deafening. With the exception of an effort by a handful of Democrats in the House, led by Adam Schiff of California and Barney Frank of Massachusetts, to introduce a Detention of Enemy Combatants Act, Congress seems to be happy to allow the executive branch to struggle with the problem. Congress needs to do its job, and it should write a detailed law, one to be reauthorized every five years or so.

But there's no getting around that this is a troubling area of policy. In England and Israel, preventive detention has been highly controversial. Though Lord Diplock was essentially a reformer, and though his report on Northern Ireland brought legal clarity and constraint to what he and others perceived to be runaway executive power, his name is often associated with authoritarian excess. Fashioning a preventive detention policy is likely to be a thankless task here as well. The name of the architect of America's preventive detention policy may well become associated with an innovation that will be loved by none and hated by many. But the benefit would be to bring the rule of law to bear even here, where the Bush Administration has made clear that it is only so willing to check its own power.

Thomas F. Powers is an assistant professor of political science at the University of Minnesota Duluth.

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