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This statement has been adapted from “Restoring the Rule of Law: Hearing Before the Subcommittee on the Constitution of the House Committee on the Judiciary,” 110th Congress, September 16, 2008.
Introduction
When Al Qaeda terrorists attacked the United States on September 11, 2001, they killed thousands of innocent people and targeted symbols of our economic and military power. We must not let those attacks undermine the values upon which this nation was founded. The incoming president and Congress will have an opportunity to restore the United States’ commitment to these values—fairness, liberty, basic inalienable rights, and the rule of law—in the national security arena. Among other areas of national security policy, a new president will need to undertake serious renovation of U.S. detention policy. Such repair work is ultimately necessary not only as a matter of principle but also to strengthen our security. This statement of principles represents a consensus among its signatories regarding the most effective ways to reform the current broken system of detention.
Across the political spectrum, there is a growing consensus that the existing system of long-term detention of terrorism suspects without trial through the network of facilities in Guantánamo and elsewhere is an unsustainable liability for the United States that must be changed. The current policies undermine the rule of law and our national security. The last seven years have seen a dangerous erosion of the rule of law in the United States through a disingenuous interpretation of the laws of war, the denial of ordinary legal process, the violation of the most basic rights, and the use of unreliable evidence (including secret and coerced evidence). The current detention policies also point to the inherent fallibility of “preventive” determinations that are based on assessment of future dangerousness (as opposed to past criminal conduct). Empirical studies demonstrate that “preventive” detention determinations that rely on assessment of future dangerousness generate unacceptably high levels of false positives (i.e., detention of innocent people). Indeed, while the Bush administration once claimed the Guantánamo detainees were “the worst of the worst,” following minimal judicial intervention it subsequently released more than 300 of them, as of the end of 2006.
Because it is viewed as unprincipled, unreliable, and illegitimate, the existing detention system undermines our national security. Because the current system threatens our national security, we strongly oppose any effort to extend the status quo by establishing either (1) a comprehensive system of long-term “preventive” detention without trial for suspected terrorists, or (2) a specialized national security court to make “preventive” detention determinations and ultimately to try terrorism suspects. Despite dressed-up procedures, these proposals would make some of the most notorious aspects of the current failed system permanent. To the extent such systems were established within the territorial United States as opposed to on Guantánamo or elsewhere, they would essentially bring the failed Guantánamo system home. Perhaps most fundamental is the fact that the supporters of these proposals typically fail to make clear who should be detained, much less how such individuals, once designated, can prove they are no longer a threat. Without a reasonably precise definition, not only is arbitrary and indefinite detention possible, it is nearly inevitable. Moreover, many of the proponents of a renewed “preventive” detention regime explicitly underscore the primacy of interrogation with respect to detainees’ otherwise-recognized rights. A detention system that permits ongoing interrogation inevitably treats individuals as means to an end, regardless of the danger they individually pose, thereby creating perverse incentives to prolonged, incommunicado, arbitrary (and indefinite) detention, minimized procedural protections, and coercive interrogation.
Such arrangements instill resentment and provide propaganda for recruitment of future terrorists, undermine our relationships with our allies, and embolden terrorists as “combatants” in a “war on terror” (rather than delegitimizing them as criminals in the ordinary criminal justice system). Moreover, the current system of long-term (and, essentially, indefinite) detention diverts resources and attention away from other, more effective means of combating terrorism. Reflecting what has now become a broad consensus on the need to use the full range of instruments of state power to combat terrorism, the bipartisan 9/11 Commission pointed out that “long-term success [in efforts to pursue al Qaeda] demands the use of all elements of national power: diplomacy, intelligence, covert action, law enforcement, economic policy, foreign aid, public diplomacy, and homeland defense.” Thus, in addition to revamping the existing detention program to bring it within the rule of law, the incoming president should work with Congress to utilize this broad array of tools to vigorously prosecute terrorism.
In this statement, we propose a set of principles that should guide any new detention policy. We then provide concrete policy recommendations for the next administration.
Statement of principles: Credible justice and national security
The hard lessons of the last seven years teach that the next administration must adopt a true blueprint of reform. Our national security turns in large part on the restoration of and stringent devotion to justice. Any new detention policy must thus operate according to four basic principles:
1. Observe the rule of law: including constitutional and statutory bounds, human rights, and international humanitarian law (addressed in further detail in policy recommendation 8, below). End-runs around the Constitution and basic rights for the sake of expediency or fear are wrong and ultimately counterproductive.
2. Liberty is the norm: Detention without trial is an extraordinary measure. Moreover, the very notion of “preventive detention” runs fundamentally counter to our most cherished traditions of justice by incarcerating people for what they might do in the future, not for acts they have actually committed.
3. Individualized process: Every person—including anyone suspected of terrorism—deserves an individualized process that provides a meaningful opportunity to confront the charges and evidence against him or her. No person should be treated solely as a means to an end, and interrogation alone should never suffice to justify detention.
4. Transparency: Credibility and legitimacy turn on transparency. Secrecy not only provides a breeding ground for abuses, but it also erodes public trust in government policies, both in the United States and abroad.
A blueprint for change: Key policy fixes
A program of credible justice leads to the following concrete policy recommendations for the incoming president:
1. Close Guantánamo: To make a clean break with the unsuccessful policies of the past, upon taking office, the new president should immediately announce a firm timetable for closure of the detention center at Guantánamo. The process of closing Guantánamo should include a process by which the new administration promptly undertakes its own, independent review of these cases, and publicly releases its conclusions in as much detail as possible without releasing appropriately classified information. Those who can be criminally charged and tried should be prosecuted, and those who should be released must be released, in accordance with the following classification and process:
a. The first group of detainees whom the United States chooses to prosecute, should be transferred to U.S. detention facilities pending trial for alleged crimes.
b. The second group of detainees, whom the United States chooses not to prosecute, should be repatriated to their home countries in accordance with all applicable laws (and those who cannot be charged or repatriated because of fear of torture must be resettled either in a third country or in the United States).
2. Welcome judicial oversight: As Boumediene v. Bush makes clear, all Guantánamo detainees have a constitutional right to petition U.S. courts for a writ of habeas corpus to review, at a minimum, their status classification and/or continued detention. Habeas actions by detainees must proceed swiftly, and the new president should facilitate that process.
3. Scrap the existing military commissions and reject specialized terror courts: The next president should immediately suspend all military commission proceedings and then expeditiously dismantle the flawed military commissions and reject any effort to establish similarly flawed, specialized national security (or terror) courts. Using established U.S. courts to try terrorists will get trials moving more swiftly and would be an important step in restoring confidence in the American system of justice.
This statement expresses a strong preference for the use of federal courts, wherever feasible, over courts-martial for those Guantánamo detainees who are prosecuted. The use of courts-martial against current detainees—who contest their status as combatants—would merely prolong jurisdictional disputes and therefore would not achieve the swift dispensation of credible justice. By contrast, the federal courts have successfully and credibly handled many terrorism cases. Indeed, because the rules of evidence in courts-martial are a virtual carbon copy of those in district court, there is no evidentiary benefit to the government in employing courts-martial when district courts could try the case. Moreover, international human rights law strongly disfavors the use of military courts to try civilians. Finally, the prominent role played by civilian Department of Justice prosecutors and a civilian convening authority in the military commissions suggests that there is nothing inherently military about these cases. While courts-martial may be a lawful option in some cases, trial by courts-martial does not generally serve the government’s interest, the interests of detainees, or our national security.
4. Look beyond Guantánamo: Beyond Guantánamo, there are an estimated 25,000 “post 9/11 detainees” being held by the United States or on behalf of the United States worldwide, primarily in Iraq and Afghanistan. Given its sui generis status, Guantánamo should not be the baseline or model upon which our broader detention program is built. The Guantánamo predicament is the result of a sequence of unprecedented decisions by the Bush administration to deny the basic rights of those detained there since 2001. Deborah Pearlstein, a visiting scholar at the Woodrow Wilson School of International and Public Affairs, put it best during her testimony before the House Committee on the Judiciary last year: “We must not let the hard case of Guantánamo make bad law for all future counterterrorism detention operations.” The new administration must review the status of all U.S.-held detainees and comply with international human rights and humanitarian law principles, as set forth below in policy recommendation 8.
5. Apply a “zero-tolerance” rule regarding torture and other illegal abusive treatment: Both as a matter of law and national security, the new president must adhere to treaties that the United States negotiated and ratified prohibiting torture as well as cruel, inhuman, or degrading—also known as CID—treatment or punishment under any circumstances. Since the September 11th terror attacks, the United States has gone from a policy of zero tolerance to a policy of minimal accountability on torture, which has led to widespread condemnation. Sadly, in parts of the world, photographs of abuse from Abu Ghraib rival the Statue of Liberty as an emblem of our great country. Those photographs, moreover, provide potential fodder for terrorist recruits. Yet, “[o]ur country was founded by people who sought refuge from severe governmental repression and persecution and who, as a consequence, insisted that a prohibition against the use of cruel or unusual punishment be placed into the Bill of Rights.” To signal a new page in our county’s behavior, the next president must reassert the principle that all acts of torture and cruel or inhuman treatment are criminal offenses and that no official acting as an agent of the government (whether federal, state or local, civilian, military, or CIA)—including private contractors or foreign partners—is authorized to commit or to instruct anyone else to commit torture. No official may tolerate, condone, acquiesce, or consent to torture or CID treatment in any form. Nor may evidence extracted through such means be the basis for the imposition of criminal punishment or detention. For a ban on torture and CID treatment to be credible, there must be structures in place to define the prohibition clearly and enforce the prohibition. In addition to undertaking monitoring and compliance, such structures should include training initiatives in human rights and lawful interrogation techniques, congressional oversight, and enforcement up the chain of command.
6. Close secret prisons once and for all: When President George W. Bush announced that he was transferring over a dozen detainees from secret prisons run by the CIA overseas to Guantánamo, he failed to end the program of incommunicado CIA detention entirely. Despite U.S. criticism of disappearances by other governments, the Bush administration’s hypocritical practice of disappearing individuals violates the most basic legal norms in the treatment of prisoners. The new president must end the practice of holding ghost detainees and should afford a neutral body, such as the International Committee of the Red Cross, access to all detainees.
7. Shut down the “extraordinary rendition” program: The United States has directly or indirectly abducted terrorism suspects from around the globe for the purpose of interrogation. These so-called “extraordinary renditions” have created a spider’s web of secret interrogation facilities throughout the world. In addition to running its own secret detention facilities, the United States has cooperated with some of the world’s worst human rights offenders—Syria, Egypt, and Morocco—resulting in the torture and arbitrary detention of an unknown number of terrorism suspects. This practice must stop immediately, and all international apprehensions and transfers must occur within the bounds of domestic and international law, as a tool to bring individuals into the justice system.
8. Apply the rule of law: Bringing the U.S. detention program firmly within the rule of law would better serve the nation’s interests going forward, because it would produce more accurate determinations (regarding who should be detained) and restore our international credibility. Discrete regimes exist for detention of terrorists and terrorist suspects. These legal regimes exist both within international law and domestic law. Rather than view detainees as falling in a legal black hole—within the gaps between and among legal regimes—as the Bush administration has done, the new president should regard these multiple potentially relevant bodies of law as providing a useful spectrum “of different policy options in responding to different degrees [and types] of terrorist threat.” Moreover, essential markers of judicial systems that enforce the rule of law are judges who are independent and required to provide hearings open to the public. In particular, the new administration should restore the rule of law in the following three areas:
a. U.S. Constitution: The new administration should heed the constitutional principles that generally limit the deprivation of liberty to punishment for a crime, as opposed to as detention purely for perceived dangerousness. Historically, the government has exercised the power to physically confine persons in only six discrete, carefully cabined areas that are (or claim to be) outside of the criminal punishment system: mental health (civil commitment), public health (quarantine), juvenile jurisdiction, pretrial confinement in criminal proceedings, pre-hearing confinement in immigration proceedings, and detention during armed conflict, consistent with U.S. obligations under the international laws of armed conflict. These alternative forms of confinement are sometimes called “preventive confinement” (in contrast to punitive confinement), because they typically claim justification on the grounds of seeking to prevent some form of future harm. Each of these forms of confinement share particular safeguards: (1) perceived dangerousness alone is not sufficient to justify confinement; (2) the duration of confinement must be reasonably related to its purpose, and the state may not confine a person indefinitely as it seeks a clearly unattainable purpose; and (3) confinement may not be punitive (for example, with regard to the purpose, physical conditions, and duration (if unreasonable) of the confinement). Eric Janus, president and dean of the William Mitchell College of Law, states that, “Thus, the Supreme Court has insisted repeatedly that the ‘charge and conviction’ system is the ‘norm,’ and that incursions must be the ‘narrow,’ ‘carefully limited’ or ‘sharply focused’ exceptions … thereby requiring the state to ‘explain why its interest would not be vindicated by the ordinary criminal processes involving charge and conviction . . . .’”
b. U.S. criminal justice system: The criminal justice system has demonstrated that it has the capacity to detain terrorism suspects pending trial on charges pursuant to a variety of both terrorism-related statutes and more general statutes. Moreover, the Classified Information Procedures Act and the Foreign Intelligence Surveillance Act, or FISA have been consistently used effectively to protect the government’s interest in avoiding the disclosure of sensitive sources and methods. Furthermore, the criminal justice system does not necessarily require waiting to allow dangerous terrorists to commit their crimes before detaining them. Suspected terrorists may be detained for attempting to commit crimes, or conspiring to commit crimes in the future. But where conspiracy law does allow incarceration for conspiracy to commit future crimes, it provides safeguards by, for example, requiring an overt act in furtherance of the conspiracy, to be established beyond a reasonable doubt.
c. International legal regimes: The new administration should apply an internationally accepted and accurate understanding of international law instead of the idiosyncratic and often inaccurate view of international law advanced by the Bush administration’s Office of Legal Counsel, particularly with regard to detention policy, torture, and rendition. As with U.S. domestic law, obeying the rule of international law (which the United States has been a leader in establishing and developing) is critical as a matter of principle, our national interest (for example, in fair treatment of captured U.S. soldiers), and international stability. The two primary international law regimes that regulate detention policy are international humanitarian law, or IHL, and international human rights law. IHL recognizes the possibility of detention under particular circumstances during armed conflict until the end of hostilities to prevent individuals from rejoining the battle on behalf of the enemy. It also requires, at a minimum, humane treatment and other baseline protections. However, the Bush administration claimed that IHL either did not apply or, alternatively, stretched IHL to justify indefinite detention for interrogation of acts of terrorism that long have been considered a matter of domestic criminal jurisdiction. This approach is inconsistent with longstanding U.S. respect for the letter and spirit of IHL, is illegitimate in the eyes of the international community, vastly increases the likelihood that individuals will be improperly detained, and, because it creates resentment, undermines our national security. International human rights law also regulates detention. It applies in times of war (as well as times of peace) and only particular rights can be derogated, and only under narrow circumstances. Moreover, U.S. treaty obligations regulate U.S. operations even when conducted outside the territory of the United States. In addition to guaranteeing the basic rights associated with fair trials, these obligations prohibit arbitrary arrest and detention as well as torture and cruel, inhuman, or degrading treatment or punishment.
Conclusion
The new president and Congress will have a tremendous opportunity to restore the rule of law to U.S. detention policy and to undo some of the damage wrought over the last seven years to our reputation and national security. The principles and policy reforms proposed here should be an important part of that process.
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Signatories
Affiliations are provided for identification purposes only.
Muneer I. Ahmad
Professor of Law
American University Washington College of Law
Diane Marie Amann
Professor of Law
University of California, Davis School of Law
Fionnuala Ní Aoláin
Professor and Dorsey & Whitney Chair in Law, University of Minnesota Law School
Professor of Law and Director Transitional Justice Institute, University of Ulster
Richard Brooks
Professor of Law
Yale Law School
Sarah H. Cleveland
Louis Henkin Professor of Human and Constitutional Rights
Faculty Co-Director, Human Rights Institute
Columbia Law School
Jeffrey A. Fagan
Professor of Law and Public Health
Co-Director, Center for Crime, Community and Law
Columbia Law School
Eugene R. Fidell
Florence Rogatz Visiting Lecturer in Law
Yale Law School
President, National Institute of Military Justice
Martin S. Flaherty
Leitner Family Professor of International Human Rights
Co-Director, Leitner Center for International Law and Justice
Fordham Law School
David Golove
Hiller Family Foundation Professor of Law
New York University School of Law
Oren Gross
Irving Younger Professor of Law
Director, Institute for International Legal & Security Studies
University of Minnesota Law School
Brig. Gen. David R. Irvine, U.S. Army (Ret.)
Former interrogation instructor
Sixth U.S. Army Intelligence School
Eric S. Janus
President and Dean
William Mitchell College of Law
Derek Jinks
Marrs McLean Professor in Law
University of Texas School of Law
Anil Kalhan
Associate Professor of Law
Drexel University Earle Mack School of Law
Ramzi Kassem
Lecturer-in-Law
Yale Law School
David Kaye
Executive Director, International Human Rights Program
UCLA School of Law
Jenny S. Martinez
Associate Professor of Law & Justin M. Roach, Jr. Faculty Scholar
Stanford Law School
Hope Metcalf
Lecturer-in-Law
Yale Law School
Martha Minow
Jeremiah Smith Jr. Professor
Harvard Law School
Deborah N. Pearlstein
Visiting Scholar
Woodrow Wilson School of Public and International Affairs
Princeton University
Catherine Powell
Associate Professor of Law
Fordham Law School
Former Senior Fellow, Center for American Progress
Judith Resnik
Arthur Liman Professor of Law
Yale Law School
Margaret L. Satterthwaite
Associate Professor of Clinical Law
Faculty Director, Center for Human Rights & Global Justice
New York University School of Law
Kim Lane Scheppele
Director, Program in Law and Public Affairs
Princeton University
Mark R. Shulman
Assistant Dean, Graduate Programs and International Affairs
Adjunct Professor of Law
Pace University School of Law
Ruti Teitel
Ernst C. Stiefel Professor of Comparative Law
New York Law School
Stephen I. Vladeck
Associate Professor of Law
American University Washington College of Law