August 25, 2004


When to Hold 'Em: The U.S. should detain suspected terrorists—even if it can't make a case against them in court. (Thomas F. Powers, Sep/Oct 2004, Legal Affairs)

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. [...]

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.

The glory of republicanism is not that liberty is unlimited but that it is protected from arbitrary and capricious interference. However, the competition between our understandable reluctance to give government too much power and our inevitable demand that government protect us from threats at any cost, tends to force us into precisely the kind of situation where
we do restrain liberty arbitrarily.

As Mr. Powers argues, it would be far better to be honest with ourselves and accept that we are going to take the steps necessary to guard against the threat of terrorism and to craft a careful and consistent set of laws and regulations that apply universally. Measures like preventive detention and torture may be distasteful, but we expect and want them to be utilized on our behalf. It's incumbent upon us as citizens then to set grant permission to and set guidelines for those government officials we wish to do our dirty work.

Posted by Orrin Judd at August 25, 2004 11:45 AM

"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."

It has been awhile since I last got Law of Armed Conflict training, but from what I remember, the answer to the question is, or at least may be: Summary Execution.

Posted by: Jeff Guinn at August 25, 2004 11:55 AM

Better Hawk than Susan. She ruined him.

Posted by: Pat H at August 25, 2004 12:17 PM



Posted by: oj at August 25, 2004 12:22 PM

To Jeff's point, I'm not sure I understand the distinction Powers is making between people who engage in armed conflict contrary to the rules of war (i.e., terrorists) and war criminals.

Posted by: David Cohen at August 25, 2004 12:25 PM


Does not a war criminal have to be a soldier or agent of a sovereign state--someone who is engaged in lawful combat? If I take my Kalashnikov and mow down a few dozen innocents for the glory of Allah, am I a war criminal?

Posted by: Peter B at August 25, 2004 12:32 PM

If I take my Kalashnikov and mow down a few dozen innocents for the glory of Allah, am I a war criminal? Under current standards of "international law," probably not.

However, if I, while in uniform, subject to military discipline, and carrying arms openly, use my Barrett .50 sniper rifle to take you out before you can hurt anyone else, I'm probably a war criminal under current standards of "international law."

Posted by: Mike Morley at August 25, 2004 12:38 PM


Ok, but by point was that I assume I'd just be an ordinary criminal or a terrorist if someone ever gets around to defining such an animal. Either way, fire away.

Posted by: Peter B at August 25, 2004 12:47 PM

The armed fighter not in uniform doesn't seem to be the difficult issue. Who's more dangerous, the sniper in Afghanistan (or even in Montgomery County, Md.) or the accountant videoing the (say) Capitol for the benefit of civilian bombers?

Posted by: Harry Eagar at August 25, 2004 2:04 PM

Peter: The line between a criminal and a war criminal can be kind of hazy. John Kerry, for example, thinks that all terrorists are criminals, and all US soldiers (excepting only a handfull of swift boat veterans) are war criminals. But I think that, if you take up arms against a government, that government more or less can decide for itself how to treat you. For those who are under arms, but do not qualify as POW's under the Geneva Convention, they can be killed outright.

Posted by: David Cohen at August 25, 2004 7:09 PM



Posted by: Jeff Guinn at August 25, 2004 8:44 PM