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.

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These days, it seems, everyone wants to close Guantánamo. In January 2002, the Bush administration created a detention camp at the Guantánamo Bay Naval Base in Cuba to imprison what former Secretary of Defense Donald Rumsfeld called "the worst of the worst" terrorism suspects. The facility has since become an embarrassing stain on the United States' reputation. With some inmates now having endured more than six years of detention without charge or trial, and with no end to their ordeal in sight, Guantánamo has come to symbolize Washington's flouting of international human rights standards in the name of fighting terrorism. Now, even President George W. Bush says he wants to shut it down.

Rumsfeld's claim notwithstanding, more than half of the 778 detainees known to have passed through Guantánamo have been released, and many others deserve to be. But there is a hard-core group -- the Bush administration speaks of some 150 -- who have allegedly plotted or committed acts of terrorism or would do so now if they could. Shuttering Guantánamo would force the government to decide what should be done with these allegedly dangerous individuals. Should they be given criminal trials? Or should they, as a growing number of lawyers and scholars suggest, be subjected to a system that permits detention without charge or trial because authorities believe they might pose a future threat -- a system known as administrative, or preventive, detention?

At its core, this is a debate over whether the United States' criminal justice system can handle terrorism cases or whether due process should be sacrificed in the name of security. The stakes for the U.S. criminal justice system and the future of constitutional due process protections are enormous.

SECURITY AND LIBERTY

Many countries grapple with the dilemma of balancing national security and the rights of the accused. Authoritarian states have concluded that the best way to address serious security threats

is to summarily detain the people they consider the most dangerous suspects. Malaysia and Singapore, for example, have unabashedly embraced such preventive detentions. In both countries, the government can hold suspects for renewable two-year periods without charge or a meaningful court appearance based on the mere suspicion that they might endanger national security. Islamists, Communists, and political dissidents have been imprisoned on these grounds. One Singaporean dissident, Chia Thye Poh, alleged to be a Communist Party member, was detained without charge or trial for 32 years.

But U.S. policymakers seeking alternative models for balancing liberty and security are more likely to look to liberal democracies than authoritarian states. Among the liberal democracies, the United Kingdom and France are arguably the most aggressive in granting the state latitude in detaining terrorism suspects. The United Kingdom has experimented with preventive detention. In the 1970s, it interned hundreds of suspected Irish Republican Army members without trial. But when Westminster realized that this policy generated sympathy for the IRA and aided recruitment efforts, it changed course. The British Ministry of Defense later acknowledged, "With the benefit of hindsight, it was a major mistake." After 9/11, the government once again introduced preventive detention for non-British citizens suspected of involvement in terrorism. But the nation's highest court, the House of Lords, struck down those powers in 2004, arguing that their use constituted a disproportionate and discriminatory response to the threat of terrorism. However, the government has granted Scotland Yard the right to detain terrorism suspects at the early stage of an investigation for up to 28 days, and it has proposed extending that period to 42 days. Longer detention still requires filing criminal charges. In addition, the United Kingdom allows judicially approved "control orders," which restrict the movement and association of terrorism suspects who are not in custody and have not been charged.