Comparative Perspectives on the Detention of Terrorist Suspects

• Author: John Ip
• Position: Lecturer, Faculty of Law, University of Auckland, New Zealand
• Pages: 775-876

Lecturer, Faculty of Law, University of Auckland, New Zealand. My thanks to Kevin Jon Heller, Treasa Dunworth, and An Hertogen for their comments on earlier drafts. Any errors remain my own.

Page 775

I Introduction

The "Global War on Terror" that began after September 11, 2001 has triggered a re-examination of the appropriate balance between security and individual rights in multiple contexts. Is speech that glorifies terrorism still within the realm of protected speech? Is racial profiling justified in the context of airport security? Is the use of torture ever justified? In each case, our commitment to certain values-freedom of expression, non-discrimination, and respect for human dignity-is tested. The subject of this Article is the detention of suspected terrorists, a context in which the cherished right to liberty comes into conflict with the need for security.

The United States is currently detaining several hundred alleged terrorists, many at Guantanamo Bay Naval Base in Cuba. However, the United States is not the only nation detaining terrorist suspects. Other Western countries, including the United Kingdom, Canada, and New Zealand, have all detained suspected terrorists. In Part II, this Article outlines the detention regimes of these Anglo-common law countries as they have operated over the past five years, as well as the relevant court decisions that have affected them. In Part III, this Article discusses the differences between American and non-American detention regimes. In short, the American detention model differs from that adopted in other jurisdictions inPage 776 that the U.S. model is executive-dominated and purports to exclude all human rights norms.¹

At the same time, certain commonalities emerge. Each jurisdiction distinguishes between citizen and non-citizen terrorist suspects.² Each jurisdiction also has had to determine the level of procedural safeguards to which terrorist suspects are entitled.³ Finally, the courts in each jurisdiction have generally been surprisingly willing to intervene in an area where they historically have not.⁴ These common themes are discussed in Part IV.

II The Regimes for Detaining Terrorist Suspects Post 9/11

A The United States

1. The Creation of a Legal Vacuum

Guantanamo Bay Naval Base in Cuba (Guantanamo) has a land area of thirty-one square miles, making it larger than the island of Manhattan.⁵ It has a population of approximately 6,000. It is self-sufficient, with its own water plant, schools, a four-year college, and the usual accoutrements of American suburbia: McDonald's, Pizza Hut, Subway, and Kentucky Fried Chicken.⁶

In January 2002, several months after the American campaign in Afghanistan against al Qaeda and the Taliban regime had begun, the first captives arrived at Guantanamo. The United States detained them at Camp X-Ray, at the time nothing more than a makeshift collection of exposed wire cages which would serve as the backdrop for the now-iconic image of kneeling detainees clad in orange jumpsuits.⁷ In April 2002, the camp was replaced by Camp Delta, a more permanent establishment. Camp Delta is divided into five camps, with more compliant detainees held in a lower security camp withPage 777 better conditions and less compliant detainees held in maximum security.⁸ In 2006, the United States completed construction of another permanent detention facility at Guantanamo, Camp Six.⁹ Despite numerous calls for its closure over the past five years, Guantanamo continues to hold about 400 detainees.¹⁰

The decision to detain terrorist suspects at Guantanamo was a deliberate choice to place detainees in a legal vacuum, a decision made possible by Guantanamo's unique legal status. Guantanamo has been an American possession since the Spanish-American War in 1898. The United States holds Guantanamo under a lease agreement that continues indefinitely unless terminated with the consent of both Cuba and the United States.¹¹ Under the terms of the lease, the United States exercises complete jurisdiction and control over the base, although ultimate sovereignty remains with Cuba. After Castro came to power, the United States surrounded the base with a cactus barrier, and later a minefield.¹²

Guantanamo's geographic isolation means that those detained there can be detained largely in secret, away from the eyes of the media and public. Thus, in 1991, the United States used Guantanamo as a center for processing refugees free of some of the legal protections they would otherwise have enjoyed.¹³ It is unsurprising, then, that Guantanamo would be chosen as the site for detaining suspected terrorists some ten years later. Even more significant than its physical remoteness, however, is its status as a legal twilight zone. It is clear that Cuban law does not apply to Guantanamo. At the same time, it is not formally part of the United States. Thus, the BushPage 778 administration thought that incarcerating terrorist suspects at Guantanamo would put those suspects beyond the jurisdiction of American federal courts.¹⁴

Having ostensibly avoided the application of U.S. domestic law, the next step was to deny the detainees the protection of international law. The law of war regulates conduct during armed conflict.¹⁵ It can be divided into two general areas: Hague law, which concerns the conduct of armed forces on the battlefield, and Geneva law, which concerns the protection of persons affected by war.¹⁶ Of particular relevance to Guantanamo is the Third Geneva Convention (GCIII), which deals with the treatment of prisoners of war (POWs).¹⁷ As the United States alleged that many Guantanamo detainees were enemy fighters captured on the battlefield, GCIII appeared applicable. This posed some difficulties for the Bush administration because POWs are entitled to certain protections under GCIII. For example, a POW cannot be tried for merely participating in battle, as he is protected by combatants' privilege.¹⁸ Although POWs can be tried for war crimes, the detaining power must ensure that the court trying a POW is equivalent to the court that the country would use to try its own forces.¹⁹ The court must also meet certain basic procedural standards.²⁰ The military commissions envisaged by President Bush's military order of November 13 2001²¹ would plainly have been precluded by GCIII. Moreover, Article 17 of the Third Geneva Convention famously states that POWs need only state their name, rank and serial number.²² Contrary to popular perception, there is nothing that prevents a detaining power from interrogating a POW. However, a POW cannot be tortured or coerced into giving up information.²³Page 779

When the United States initially considered the issue of the treatment of war-on-terror detainees in January 2002, there was no move to deviate from the Geneva Conventions. However, Department of Justice lawyers sought to establish that the Geneva Conventions did not apply to the conflict with al Qaeda and the Taliban as a legal matter,²⁴ a position the State Department strenuously opposed.²⁵ President Bush eventually determined that the Geneva Conventions applied to Taliban detainees but not to al Qaeda detainees.²⁶ The Taliban detainees, however, were not entitled to POW status because they did not qualify under the terms of GCIII. Nonetheless, Bush ordered that all Guantanamo detainees be treated "humanely," and "to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention of 1949."²⁷

Just one obstacle remained: international human rights law. The basic idea of human rights, that all people have certain rights simply by virtue of being human,²⁸ has gained great currency since World War II, resulting in an explosion of international human rights treaties beginning with the Universal Declaration of Human Rights in 1948.²⁹ The most important for present purposes is the International Covenant on Civil and Political Rights (ICCPR), one of two treaties intended to set out the principles enunciated inPage 780 the Universal Declaration.³⁰ The ICCPR was signed by the United States in 1977 and ratified in 1992.³¹ The Covenant contains several provisions that are relevant to the Guantanamo detainees. Article 9 affirms the right to...