Unprivileged Belligerents, Preventive Detention, and Fundamental Fairness: Rethinking the Review Tribunal Representation Model
Santa Clara Journal of International Law, Forthcoming
80 Pages Posted: 2 Jul 2012 Last revised: 16 Dec 2012
Date Written: July 1, 2012
The preventive detention of captured terrorist operatives based on the determination of unprivileged enemy belligerent status has been one of the most controversial aspects of the military component of the U.S. counter-terrorism campaign. Efforts to revise and improve the preventive detention process have produced significant modifications intended to protect captives from erroneous detention decisions. However, the lack of legal representation for detainees subject to the detention review process has remained unaltered since the 2001 initiation of this preventive detention regime. Relying ostensibly on a variety of justifications - including inter alia the fact that not even lawful enemy combatants are afforded assistance of counsel to challenge their preventive detention under the Geneva Conventions and that the preventive nature of the detention in no way implicates the Sixth Amendment of the U.S. Constitution - the United States has steadfastly refused to provide captives such assistance at proceedings to determine whether they qualify for indefinite detention. Instead, in an obvious analogy to the process for determining POW status pursuant to the Geneva Convention Relative to the Treatment of Prisoners of War and the Army Regulation implementing that treaty, a non-legal representative is provided to assist the captive in contesting the legitimacy of the unlawful belligerent status determination and the preventive detention resulting from that characterization. This article will question whether denying these captives legal representation is justified in light of the interests at stake in the detention review process, and ultimately assert that this is no longer a defensible model. In so doing, it will consider the fundamental balance between the risks and consequences of error and the feasibility of providing such assistance implicated by the preventive detention process, and how this balance influences the ongoing conclusion that lay representation by a military office is justified by the nature of the preventive detention process. While acknowledging that wartime preventive detentions fall outside the scope of precedents like Powell and Gideon, the article will draw from underlying principles reflected in these decisions to question whether the lay representation by military officers is sufficient to effectively advance the interests implicated in this non-punitive preventive detention process. Finally, the article will consider the probable objections to providing legal representation to detainees to include the feasibility of doing so.
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