Avoiding an International Law Fix for Terrorist Detention

• Publication year: 2022

41 Creighton L. Rev. 663. AVOIDING AN INTERNATIONAL LAW FIX FOR TERRORIST DETENTION

Creighton Law Review

Vol. 41

DEBORAH N. PEARLSTEIN(fn*)

In a widely reported lecture at the University of Oxford in late 2007, U.S. State Department Legal Adviser John Bellinger - the Administration's senior authority on the law of war - spoke of the Geneva Conventions' inadequacy as an international legal framework for the detention of individuals caught up in armed conflict involving transnational terrorist organizations.(fn1) "The bottom line, as an increasing number of legal experts now acknowledge," according to Bellinger, "is that the legal framework for conflicts with transnational terrorists like al Qaida is not clear."(fn2)

Bellinger's is perhaps the most definitive statement of the United States' current view of the law of war (also called international humanitarian law or "IHL"). But he is hardly alone in expressing frustration with existing IHL as a means of regulating the detention of terrorist suspects. Former head of the Justice Department's Office of Legal Counsel, Jack Goldsmith, and presidential candidate John McCain, have both recently called for a "new international understanding on the disposition of dangerous detainees under our control."(fn3) The British House of Commons Foreign Affairs Committee likewise issued a report last year concluding that "the Geneva Conventions . . . lack clarity and are out of date," and recommending, among other things, that "the Government work with other signatories to the Geneva Conventions . . . to update the Conventions in a way that deals more satisfactorily with asymmetric warfare, with international terrorism, with the status of irregular combatants, and with the treatment of detain-ees."(fn4) And indeed, the Final Report of the National Commission on Terrorist Attacks upon the United States (the 9/11 Commission) recommended in 2004 that the United States "engage its [international] friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists," a policy position that, on its face, is arguably consistent with the calls for new law.(fn5)

To some extent, the latest calls for a new international legal effort are motivated by the now pressing need to resolve the dilemma posed by existing U.S. detention policy, particularly involving the several hundred detainees still held at the U.S. Naval Base at Guantanamo Bay, Cuba. While U.S. leaders, including the President, have indicated a desire to close the detention camp at Guantanamo, they have also signaled the need for international cooperation in taking back returning detainees, either for release or continued detention.(fn6) In addition, U.S. advocates for a new international legal framework for terrorist detention appear to be motivated by a policy interest of more lasting significance. In particular, they argue that conflicts with international terrorist organizations are here to stay, and the Geneva regime provides only general guidance on who may be detained in such conflicts, and on what procedural protections detainees must be afforded. Agreed-upon standards are essential in this realm not, as Goldsmith puts it, "because of a squishy commitment to internationalism, but because an international consensus on how to treat detainees would foster deeper international cooperation crucial in thwarting terrorists."(fn7)

There is little question that international cooperation in counterterrorism efforts is essential, and similarly little question that U.S. detention operations have been hamstrung by ongoing international objections about their legal legitimacy.(fn8) But the position that the United States should now undertake efforts to develop a new international legal framework for the detention of terrorist suspects is problematic, in my view, for two primary reasons. First, key "gaps" in IHL that Mr. Bellinger and others see in international laws regulating state detention of terrorist suspects were left with the understanding that they would be filled in by other existing bodies of national and international law, including domestic criminal law. The existence of multiple, potentially relevant bodies of law governing different aspects of state action against terrorism is not of itself a problem; indeed, different governing laws usefully afford states a meaningful array of different policy options in responding to different degrees of terrorist threat.

Second, to the extent IHL is unclear on key questions surrounding detention - and there are indeed a few areas that reasonably fit this description - a U.S.-driven effort to negotiate a new formal (or informal) international understanding of these topics is unlikely to satisfy the interests of many U.S. proponents of a revised international framework, and otherwise unlikely to succeed anytime soon. Indeed, the next administration may well conclude the particular "clarifications" current proponents have in mind are not helpful to the security interests of the United States. Any engagement with international partners on these matters should be preceded by a strategic reassessment of the role of detention in U.S. counterterrorism policies. It may be that the outcome of this project will render moot the enormous task of international re-negotiation of core ideas in the law of war.

In this Essay, I explore reasons why the next U.S. administration should think twice before undertaking to pursue as a first option an international legal solution to current terrorism detention dilemmas.

I. INSPECTING THE GAPS

Among the arguments in favor of a new international legal framework on terrorist detention, the most significant involve claims that current IHL leaves two important issues unresolved: who may be detained during an "armed conflict" as defined by IHL, and what procedural protections must they be afforded.(fn9) Consider first the matter of who may be detained. There is little question that a state involved in an "armed conflict" against another state is permitted to detain a variety of individuals, including combatants wearing the uniform of a party to the conflict,(fn10) anyone who takes a "direct part in hostilities" (whether uniformed or not, military or civilian),(fn11) and broadly, anyone who the detaining power believes is "absolutely necessary" to hold "for imperative reasons of security."(fn12)

Despite such broad existing authority, critics of the current regime focus primarily on Geneva's apparent omission from contemplated detention powers the internment of individuals who, in the context of counterterrorism, a state might well want to detain. In particular, critics question the legal status of: (1) individuals who engage in wrongdoing but are not involved in an "armed conflict" within the generally accepted IHL understanding of the term (for example, a member of a terrorist organization who is believed to have participated in a past bombing and is detained on the streets of Prague), and (2) civilians who may not take a "direct part" in any armed hostilities, but who materially contribute to terrorism nonetheless (for example, a terrorist money launderer or religious leader who inspires violence).(fn13) I consider the existence of a gap with respect to Category (1) detainees here; issues associated with Category (2) detainees are addressed in Part II below.

First, the position that it is a problem to leave IHL silent or ambiguous on all issues related to detention is premised on a faulty assumption - that IHL must provide an answer to all questions about the legal regulation of international counterterrorism. But IHL is not, nor should it be, the only body of law empowering or constraining government action in this realm. IHL exists against a broad array of domestic and international criminal laws (as well as immigration, civil commitment, and related government powers) that both authorize detention, and regulate its appropriate use. There is now broad consensus that the United States should deploy its full range of instruments of national power - including economic, diplomatic, cultural, and, where appropriate, military - as part of a unified strategy to address the threat of terrorism.(fn14) It would seem strange indeed to overlook the criminal law in particular as one of the many important instruments in this collection for securing the long-term detention of those engaged in terrorist activity.

In this light, it should become clear that an individual in Category (1) above - who engages in wrongdoing but is not necessarily involved in an "armed conflict" as traditionally defined by IHL - is not undetainable or without legal protection. He is a criminal, and subject to domestic and/or international criminal law. Particularly since the attacks of September 11th, the United States among other nations has significantly expanded its already broad array of criminal prohibitions against engagement in terrorist activity, or activities that contribute to terrorism. These laws subject individuals to U.S. federal criminal jurisdiction even if their offenses occur outside the territorial borders of the United States, and even if their crimes exist only in inchoate form.(fn15) To the extent IHL is silent on Category (1) detainees, it is because the criminal law exists.

An advocate for new international law in this realm might nonetheless respond by allowing that it may...