Scholars’ Statement of Principles for the New President on U.S. Detention Policy: An Agenda for Change

15 Pages Posted: 14 Oct 2015

Date Written: 2009

Abstract

When al Qaeda terrorists attacked the United States on September 11, 2001, they killed thousands of innocent people and targeted symbols of our economic and military power. We must not let those attacks undermine the values upon which this nation was founded. President Obama and the new Congress have an opportunity to restore the United States’ commitment to these values--fairness, liberty, basic inalienable rights and the rule of law--in the national security arena. Among other areas of national security policy, President Obama will need to undertake serious renovation of U.S. detention policy. Such repair work is ultimately necessary not only as a matter of principle but also to strengthen our security. This Statement of Principles represents a consensus among its signatories regarding the most effective ways to reform the current broken system of detention. Across the political spectrum, there is a growing consensus that the existing system of long term detention of terrorism suspects without trial through the network of facilities in Guantánamo and elsewhere is an unsustainable liability for the United States that must be changed. The current policies undermine the rule of law and our national security. The last seven years have seen a dangerous erosion of the rule of law in the United States through a disingenuous interpretation of the laws of war, the denial of ordinary legal process, the violation of the most basic rights and the use of unreliable evidence (including secret and coerced evidence). The current detention policies also point to the inherent fallibility of “preventive” determinations that are based on assessments of future dangerousness (as opposed to past criminal conduct). Empirical studies demonstrate that “preventive” detention determinations that rely on assessment of future dangerousness generate unacceptably high levels of false positives (i.e., detention of innocent people). Indeed, while the Bush Administration once claimed the Guantánamo detainees were “the worst of the worst,” following minimal judicial intervention, it subsequently released more than 300 of them, as of the end of 2006. Because it is viewed as unprincipled, unreliable and illegitimate, the existing detention system undermines our national security. Because the current system threatens our national security, we strongly oppose any effort to extend the status quo by establishing either (1) a comprehensive system of long-term “preventive” detention without trial for suspected terrorists, or (2) a specialized national security court to make “preventive” detention determinations and ultimately to try terrorism suspects. Despite dressed up procedures, these proposals would make some of the most notorious aspects of the current failed system permanent. To the extent such systems were established within the territorial United States, as opposed to on Guantánamo or elsewhere, they would essentially bring the failed Guantánamo system home. Perhaps most fundamental is the fact that the supporters of these proposals typically fail to make clear who should be detained, much less how such individuals, once designated, can prove they are no longer a threat. Without a reasonably precise definition, not only is arbitrary and indefinite detention possible, it is nearly inevitable. Moreover, many of the proponents of a renewed “preventive” detention regime explicitly underscore the primacy of interrogation with respect to detainees’ otherwise-recognized rights. A detention system that permits ongoing interrogation inevitably treats individuals as means to an end, regardless of the danger they individually pose, thereby creating perverse incentives to prolonged, incommunicado, arbitrary (and indefinite) detention, minimized procedural protections and coercive interrogation. Such arrangements instill resentment and provide propaganda for recruitment of future terrorists, undermine our relationships with our allies and embolden terrorists as “combatants” in a “war on terror” (rather than delegitimizing them as criminals in the ordinary criminal justice system). Moreover, the current system of long term (and, essentially, indefinite) detention diverts resources and attention away from other, more effective means of combating terrorism. Reflecting what has now become a broad consensus around the need to use the full range of instruments of state power to combat terrorism, the bi-partisan 9/11 Commission pointed out that “long-term success [in efforts to pursue Al-Qaeda] demands the use of all elements of national power: diplomacy, intelligence, covert action, law enforcement, economic policy, foreign aid, public diplomacy, and homeland defense.” Thus, in addition to revamping the existing detention program to bring it within the rule of law, President Obama should work with Congress to utilize this broad array of tools to vigorously prosecute terrorism. In this Statement, we propose a set of principles that should guide any new detention policy. We then provide concrete policy recommendations for the new Administration.

Suggested Citation

Powell, Catherine, Scholars’ Statement of Principles for the New President on U.S. Detention Policy: An Agenda for Change (2009). 47 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 339 (2009). Available at SSRN: https://ssrn.com/abstract=2674196

Catherine Powell (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States

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