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Rethinking “Preventive Detention” from a Comparative Perspective: Three Frameworks for Detaining Terrorist Suspects

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Rethinking “Preventive Detention” from a Comparative Perspective: Three Frameworks for Detaining Terrorist Suspects RETHINKING “PREVENTIVE DETENTION” FROM A COMPARATIVE PERSPECTIVE: THREE FRAMEWORKS FOR DETAINING TERRORIST SUSPECTS Stella Burch Elias* ABSTRACT President Barack Obama has convened a multi-agency taskforce whose remit includes considering whether the United States should continue to hold terrorist suspects in extra-territorial “preventive detention,” should develop a new system of “preventive detention” to hold terrorist suspects on domestic soil, or should eschew any use of “preventive detention.” American scholars and advocates who favor the use of “preventive detention” in the United States frequently point to the examples of other countries in support of their argument. At the same time, advocates and scholars opposed to the introduction of such a system also turn to comparative law to bolster their arguments against “preventive detention.” Thus far, however, the scholarship produced by both sides of the debate has been limited in two key respects. Firstly, there have been definitional inconsistencies in the literature—the term “preventive detention” has been used over- broadly to describe a number of different kinds of detention with very little acknowledgment of the fundamental differences between these alternative regimes. Secondly, the debate has been narrow in scope— focusing almost exclusively on “preventive detention” in three or four other (overwhelmingly Anglophone) countries. This Article seeks to * Law Clerk to the Honorable Stephen Reinhardt. Yale Law School, J.D. 2009. I am very grateful to Harold Hongju Koh, Hope Metcalf, Judith Resnik, Reva Siegel, Muneer Ahmad, Sarah Cleveland, and John Ip for their generous advice and thoughtful comments on earlier versions of this article, to Allison Tait, Megan Barnett, and the Yale Law Teaching Series workshop participants for their helpful feedback, and to Meera Shah, Megan Crowley, and the Columbia Human Rights Law Review for their terrific editing. Above all, I owe a tremendous debt to Bram Elias for his countless contributions to this piece. 100 COLUMBIA HUMAN RIGHTS LAW REVIEW [41:99 advance the debate about “preventive detention” by moving beyond each of these limitations. First, the Article defines, analyzes, and differentiates between the different kinds of “preventive detention.” Second, the Article broadens the scope of the debate by comparing the systems of terrorism-related “preventive detention” in use in thirty-two different countries. The Article constructs a taxonomy of “preventive detention” based on core principles of international law to distill the key attributes of the “preventive detention” regimes in each of the countries surveyed. Using the taxonomy, the Article proposes that there are three overarching frameworks used to detain terrorist suspect detainees: (1) the pre-trial detention framework; (2) the immigration detention framework; and (3) the national security detention framework. This Article proposes that U.S. policymakers contemplating possible future approaches to the detention of suspected terrorists should move beyond the inapposite and misleading question of whether or not to engage in “preventive detention,” and should instead determine which of these three frameworks offers the most appropriate approach to the detention of terrorist suspects. The Article concludes with the argument that a version of the pre-trial detention framework approach would be most suited for use in the United States. TABLE OF CONTENTS INTRODUCTION ..................................................................................................101 I. TOWARD A TAXONOMY OF PREVENTIVE DETENTION ...............................110 A. Defining Preventive Detention....................................................110 B. Interpreting International Standards to Construct a Taxonomy of Preventive Detention.............................................113 C. Three Alternative Frameworks of ‘Preventive Detention’ .........128 II. THE PRE-TRIAL DETENTION FRAMEWORK..............................................131 A. Key Characteristics of Pre-Trial Detention Framework Countries......................................................................................133 B. Similarities and Differences between Pre-Trial Detention Framework Countries..................................................................148 C. Advantages and Disadvantages of the Pre-Trial Detention Framework...................................................................................155 III. THE IMMIGRATION DETENTION FRAMEWORK .........................................159 A. Key Characteristics of Immigration Detention Framework Countries......................................................................................159 B. Similarities and Differences between Immigration Detention Framework Countries ................................................169 C. The United Kingdom’s Rejection of the Immigration Detention Framework..................................................................172 2009] RETHINKING “PREVENTIVE DETENTION” 101 D. Advantages and Disadvantages of the Immigration Detention Framework..................................................................177 IV. THE NATIONAL SECURITY DETENTION FRAMEWORK ..............................179 A. Key Characteristics of the National Security Detention Framework Countries..................................................................181 B. Similarities and Differences between National Security Detention Framework Countries ................................................199 C. The Advantages and Disadvantages of the National Security Detention Framework...................................................203 CONCLUSION......................................................................................................207 APPENDIX ................................................................................................... 211 INTRODUCTION Our responses to terrorism, as well as our efforts to thwart it and prevent it, should uphold the human rights that terrorists aim to destroy. Respect for human rights, fundamental freedoms and the rule of law are essential tools in the effort to combat terrorism—not privileges to be sacrificed at a time of tension.1 On January 22, 2009 President Barack Obama signed executive orders mandating the closure of the detention camp at Guantánamo Bay, Cuba, within one year,2 ending the Central Intelligence Agency’s secret detention facilities,3 and holding all interrogations of suspected terrorists to the “noncoercive” standards set out in the Army Field Manual.4 At the same time, President Obama signed Executive Order 13493, “Review of Detention Policy Options,” establishing an interagency taskforce whose mission is to: conduct a comprehensive review of the lawful options available to the Federal Government with respect to the apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations, and to identify such options as are consistent 1. Kofi Annan, Sec’y Gen. U.N., Remarks at a special meeting of the Security Council's Counter-Terrorism Committee with International, Regional, and Sub-Regional Organizations (Mar. 6, 2003). 2. Exec. Order No. 13,492, 74 Fed. Reg. 4,897 (Jan. 22, 2009). 3. Exec. Order No. 13,491, 74 Fed. Reg. 4,893 (Jan. 22, 2009). 4.Id. The Order’s language, however, leaves open the ability to employ “authorized, non-coercive” techniques in addition to those detailed in the Army Field Manual. Id. See also Scott Shane, Mark Mazzetti & Helene Cooper, Obama Reverses Key Bush Security Policies, N.Y. Times, Jan. 23, 2009, at A16. 102 COLUMBIA HUMAN RIGHTS LAW REVIEW [41:99 with the national security and foreign policy interests of the United States and the interests of justice.5 In July 2009, the task force appointed by President Obama announced that it required a six-month extension to more fully consider the options available for the detention of terrorist suspect detainees.6 This Article explores one of the options currently being considered by the task force: the use of “preventive detention”—i.e. detention without trial or charge—to hold suspected terrorists.7 The Guantánamo detainees are perhaps the most (in)famous prisoners held in “preventive detention” anywhere in the world today, and widespread criticism at home and abroad appears to have contributed to the Obama administration’s decision to close the detention camp by January 2010.8 Despite this criticism, however, a 5. Exec. Order No. 13,493, 74 Fed. Reg. 4901 (Jan. 22, 2009). 6. See David Johnston, Panel Misses A Deadline in Reviewing Guantánamo, N.Y. Times, July 21, 2009, at A14. The task force produced an interim report, leaving open the possibility of an indefinite detention regime, but their final decision has yet to issue. Id. 7. The first recorded use of the term “preventive detention” was by Lord Wrenbury in the World War I English case R. v. Halliday, [1917] AC 260, (H.L.) (appeal taken from K.B.). Today the term “preventive detention” is typically used to describe a situation where a person is detained for reasons that are either political or connected with national security, public order, or public safety. A number of synonyms for “preventive detention” are used in jurisdictions throughout the world, including “preventative detention,” “detention without charge or trial,” “administrative detention,” “administrative internment,” “internment,” “retention administrative,” “mise aux arrets,” “detention
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