After Guantánamo

The Case Against Preventive Detention

Kenneth Roth

From Foreign Affairs, May/June 2008

Summary:  The U.S. detention facility at Guantánamo Bay has become a stain on the United States' reputation. Shutting it down will cause new problems. Rather than hold terrorism suspects in preventive detention, the United States should turn them over to its criminal justice system.

KENNETH ROTH, a former federal prosecutor in New York and Washington, D.C., is Executive Director of Human Rights Watch.

France has stricter rules when it comes to pressing charges against terrorism suspects. The French government requires the filing of criminal charges within six days. But it provides its prosecutors with leeway in other areas. France permits prosecution under a crime called association de malfaiteurs (criminal association), which allows charges to be brought when there is an "understanding" between two or more people to carry out a crime and the group has taken at least one material step toward its goal. This resembles U.S. conspiracy law but is harsher because it allows charges to be lodged on the basis of information gained through interrogation without the presence of a lawyer -- often supplemented by hearsay evidence -- and a suspect can then be held in pretrial detention for more than three years. In terrorism cases, such detention has been common. France thus stays within a criminal justice paradigm but requires far less evidence before allowing the state to place a suspect in long-term detention.

THE AMERICAN EXCEPTION

Seen against this backdrop, the United States has reason to be proud of its long tradition of criminal justice with rigorous due process guarantees. There have been exceptions, however. The internment of U.S. citizens and residents of Japanese descent during World War II is the most notorious example, but it was a rare exception, and such practices have not been permitted to serve as a regular substitute for criminal prosecution. Like many countries, the United States also allows detention without trial for mentally ill people found to pose a danger to themselves or others. Finally, the pretrial detention of a suspect is permitted once criminal charges have been filed if evidence shows that the suspect presents a danger or a flight risk, but any detention occurs under the presumption that a criminal trial will take place at the earliest possible date.

It is the category of combatants that has left Washington in murky legal territory. Like all countries, the United States allows captured combatants to be detained without trial until the end of an armed conflict. The Bush administration has cited that power to justify the Guantánamo detentions. The White House claims that it is waging a "global war on terrorism" and that terrorism suspects worldwide with alleged connections to al Qaeda can thus be arrested as combatants. But since this "war" knows no geographic or temporal bounds, it has become increasingly controversial as a continuing basis for detention, especially because many of the Guantánamo detainees were arrested far from any recognizable battlefield.

From the perspective of due process, the best alternative is undoubtedly to prosecute these suspects in either federal courts or, for those captured in armed conflict, military courts. U.S. courts, which have the jurisdiction to hear terrorism cases wherever they occur, have a long history of prosecuting terrorism suspects successfully, including Richard Reid (the so-called shoe bomber), Zacarias Moussaoui (a 9/11 conspirator), and, most recently, Jose Padilla (the "dirty bomber"). But the Bush administration claims that the courts are not up to the task. Its preferred option is special military commissions, before which the government now proposes to try a number of major terrorism suspects, including the alleged mastermind of the 9/11 attacks, Khalid Sheik Mohammad. Under a law adopted by Congress in 2006, suspects tried before military commissions can be convicted, and even executed, on the basis of statements secured by coercion. Rules protecting interrogation methods from disclosure coupled with lax hearsay rules mean that these men could be sentenced to death based on second- or third-hand affidavits summarizing statements obtained through abuse, without any meaningful opportunity to challenge the evidence. This is a dangerous approach. Convictions under these conditions would be seen as illegitimate and generate widespread outrage.

An alternative currently being floated in legal and academic circles and likely soon to surface in Congress is arguably even worse: a formal system of preventive detention. Such a policy would permit the long-term, potentially indefinite detention of suspects after some sort of hearing but without the filing of criminal charges or a trial. The precise contours of the hearings -- for example, whether they would be held before a regular federal judge, a judge chosen specially to hear national security cases, or an administrative official -- would be determined by legislation and scrutinized by the courts. But almost all proposed preventive-detention schemes assume that the person presiding could consider classified evidence never presented to the suspect. This would make it impossible for defense lawyers to meaningfully challenge that evidence, and statements obtained through coercion could be easily concealed from them.

Such a "solution" would be worse than the Guantánamo problem. Indeed, it would effectively move Guantánamo onshore and make its detention regime a regular part of the U.S. government's arsenal. The temptation would be enormous to exploit the proceedings' secrecy and lax standards of evidence in order to pursue people with only tenuous connections to terrorist activity. Adopting such a system would transform the United States from one of the world's most progressive nations when it comes to protecting the rights of criminal suspects to one of the least.

FULL-COURT PRESS