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.

Fortunately, there is no need to contemplate such a radical departure from U.S. constitutional norms. U.S. courts are fully capable of addressing today's terrorist threat. The U.S. criminal justice system has successfully dealt with a broad range of serious security threats, from espionage at the height of the Cold War to ruthless drug-trafficking enterprises. In none of these cases has the United States' strong tradition of protecting defendants' due process rights stood in the way.

The most common argument against criminal prosecutions is that they examine crimes that were already committed, whereas the threat of terrorism is said to be so dangerous that it requires preventing acts before they occur. But the crime of conspiracy is sufficient to address today's terrorist threat because it is both backward and forward looking. Under U.S. law, a conspiracy can occur whether or not an intended illegal act has been carried out. Much as with the French crime of association de malfaiteurs, all that must be proved is that two or more people agreed to pursue an illegal plan and took at least one step to advance it. This should cover most terrorist plans: the lone wolf terrorist is rare, and al Qaeda and its spinoffs have typically relied on numerous participants to agree on a plan and pursue it. The same intelligence that allows investigators to identify and prevent a terrorist plot should allow them to prosecute the participants for conspiracy. Similarly, the crime of providing material support to terrorists can occur even when a terrorist act is only in preparation and has not yet been committed.

Another objection to conventional prosecutions is that they make it harder for interrogators to obtain information from suspects. Under the Sixth Amendment to the U.S. Constitution, a suspect facing criminal charges is entitled to a lawyer, who will generally tell his or her client not to talk to interrogators. But in fact, many criminal suspects with lawyers end up cooperating with interrogators because doing so can shorten the prison time they face. Moreover, the constitutional limits on a prosecutor's ability to question a suspect without counsel need not interfere with parallel but separate questioning aimed at investigating other suspects or preventing terrorism. Even if a suspect's right to counsel has been violated, the Constitution only prohibits prosecutors from using the information derived from the flawed interrogation at trial; it does not forbid other investigators, such as those trying to prevent future terrorist acts, from questioning the suspect without a lawyer present, so long as these investigators do not relay his or her words (or leads based on what he or she said) to the prosecution team. This division of labor may not be ideal, but it is better than resorting to preventive detention and discarding many basic due process rights.

Preventive-detention advocates also oppose criminal prosecution because many terrorism suspects have been subjected to torture and other harsh interrogation methods, the fruits of which no ordinary judge would admit at trial. This, they argue, makes criminal prosecution impossible. But it would be a perversion of justice to invoke the illegality of coercing evidence in order to justify the further trampling of suspects' rights through preventive detention. Moreover, coerced confessions are not the only route to criminal convictions. A review of the hearings held before the Combatant Status Review Tribunals at Guantánamo shows that the government often possesses plenty of evidence unrelated to abusive interrogation -- from computers and cell phones seized, financial records, and witnesses who have cooperated voluntarily. The U.S. government has tacitly acknowledged this point by reinvestigating the major Guantánamo suspects using allegedly "clean teams" in an effort to free prosecutions from the taint of previously coerced statements and allow them to go forward.

Some proponents of preventive detention believe that criminal justice rules are too onerous and impractical. They scoff at the idea of U.S. soldiers reading suspects their Miranda rights in the heat of battle or following complicated rules of evidence to maintain a secure chain of custody. But the courts tend to apply these rules pragmatically. For example, only criminal investigators or their surrogates, not soldiers in combat, are required to give a Miranda warning, and the courts have allowed a "public safety" exception, when questioning is urgently needed to secure timely intelligence.

Finally, opponents of criminally prosecuting terrorism suspects argue that such trials force the government to reveal its secret sources and intelligence-gathering methods. But this problem is not insurmountable. It often arises when sensitive investigations involving national security, drug trafficking, or organized crime lead to prosecution. In such circumstances, defense lawyers typically try to force the government to either reveal sensitive secrets or drop the case. To address these situations, Congress enacted the Classified Information Procedures Act (CIPA) in 1980. The law empowers federal judges to review defense counsels' requests for classified information with the aim of sanitizing that information as much as possible or restricting its disclosure to only those defense lawyers with security clearance. The purpose of the act is to protect a defendant's right to confront all the evidence against him or her while safeguarding legitimate intelligence secrets. If due process requirements cannot be met without revealing secret information, the government must either drop the relevant charges or declassify the information. Judges who have tried cases under CIPA speak of it as a reasonable compromise between fairness and security. CIPA rules have not forced the government to abandon even one of the dozens of international terrorism cases it has prosecuted since 9/11.

PRECRIMINAL ACTIVITY

A second line of argument comes from civil-liberties advocates, who worry that failing to carve out a special regime for terrorism cases would undermine the regular criminal justice system -- in much the same way that the "war on drugs" has weakened many of the traditional constraints on searches and seizures guaranteed by the Fourth Amendment. Their concern is that the crime of conspiracy, or the parallel crime of providing material support for terrorism, will be interpreted so expansively that even mere association or other innocent activities that fall short of consciously joining or supporting a terrorist plot will be criminalized.

These fears are not trivial, but at least in the most worrying cases typically cited, such as the conviction of Padilla on the grounds that he had sought to attend a terrorist training camp, there is generally some evidence of the defendant's intent to join a criminal plot beyond mere association or speech, which on its own should never be grounds for prosecution. It is true that the government has sometimes overreached and can be expected to do so again. But judicial scrutiny, although not foolproof, will curb abuse. The risk that the government will overreach would be far greater in a system that permitted the state to detain people indefinitely without trial.