Pretrial and preventive detention of suspected terrorists: options and constraints under international law.

• Author: Cassel, Douglass
• Position: Symposium on Redefining International Criminal Law

1. 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.

2. 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)

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