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.

Civil-liberties advocates also note that in the absence of legislation authorizing preventive detention, the Bush administration has used other laws to accomplish the same goals. For example, just after 9/11, it detained thousands of allegedly undocumented immigrants for months -- until law enforcement officials "cleared" them of complicity in terrorism -- instead of deporting or releasing them promptly. Similarly, the government has abused its authority to detain so-called material witnesses, which permits prosecutors to briefly hold an uncooperative crime witness until he or she can be brought to testify. The government has applied this authority far beyond its intended purpose and detained people as supposed witnesses against themselves for lengthy periods and sometimes without ever demonstrating that they had any connection to terrorism or having them testify. Under this radical approach, detaining someone as a material witness is a way of circumventing the usual requirement for arrest: proof that the state has probable cause to believe the suspect committed a crime. Pressure from human rights groups and the press, as well as judicial oversight, pushed the Bush administration, at least for now, to end these abuses. But establishing a preventive-detention statute would legalize an equally damaging process.

IF IT AIN'T BROKE

Criminal prosecution of terrorism suspects is not a perfect system. Not all suspects can be prosecuted. Sometimes evidence will be so tainted that it fails to meet even the low threshold of a conspiracy or a material-support prosecution, or the government will argue that established court procedures for protecting sensitive intelligence are insufficient. In these cases, the government will have to let the suspects go. Although they might still be deported (if they are foreign nationals and not at risk of torture when they return to their home countries) and almost certainly would be placed under intensive surveillance, releasing them certainly has its risks.

But a policy of preventive detention poses greater dangers. One lesson of Guantánamo is that when the United States begins detaining suspected terrorists on the basis of thin and untested evidence, it inevitably ends up detaining some innocent people. Particularly when combined with the government's insistence on using harsh interrogation techniques, such wrongful imprisonment generates resentment and a justified sense of victimization. As the British government discovered from its detention of IRA suspects in the 1970s, the resulting animosity is a boon to terrorist recruiters and arguably generates more terrorists than the detentions are stopping.

Preventive detention also discourages citizens from cooperating with counterterrorist investigations, a crucial factor in uncovering terrorist plots. Counterterrorism experts report that information gleaned from interrogating detainees is far less important than information delivered by members of the general public who see something suspicious and report it. For example, information given by relatives of the perpetrators and the general public was key to the arrest of those responsible for the attempted bombings in London on July 21, 2005. Similarly, a British Muslim who found an acquaintance's behavior suspicious led the police to discover the plot to bomb several transatlantic flights using liquid explosives in August 2006. Because sympathy for the victims of abusive counterterrorism policies tends to be greatest in the communities that give rise to terrorists, policies such as preventive detention jeopardize this vitally important source of intelligence.

Finally, detaining suspects without trial as part of the "global war on terrorism" allows them to glorify themselves as combatants without facing the stigma of a criminal conviction. Khalid Sheik Mohammad's comments before the Combatant Status Review Tribunal reveal that he craved the "combatant" label. In broken English, he declared, "We consider we and George Washington doing same thing. . . . So when we say we are enemy combatant, that right. We are." By detaining such suspects as warriors rather than stigmatizing them as criminals, the Bush administration is effectively reading from al Qaeda's playbook. It would be far better for a convicted suspect to face the likes of U.S. District Court Judge William Young. On sentencing Reid, the "shoe bomber," Young berated him for being not "a soldier in any war" but "a terrorist" -- a "species of criminal guilty of multiple attempted murders."

Before discarding the U.S. criminal justice system, policymakers should keep in mind the old adage "If it ain't broke, don't fix it." The terrorist threat will undoubtedly challenge the criminal justice system, but the system's track record, the quality of its personnel, and its time-tested procedures make it an infinitely better option than preventive detention. Rather than countenance so radical an exception to basic due process rights, Americans should remain confident in the strength and resilience of their criminal justice system.