Friday, October 09, 2009


Professor Hakimi's Solution to Gitmo

It is part of the wisdom, I think, of the religious tradition always to be skeptical of what governments are doing. ... One has to keep reminding oneself and other people that an exalted contempt for human life lies at the basis of diplomacy; and that one had better think of the unprotected and innocent, and be prepared for the bad news when the leaders meet.

-Daniel Berrigan and Thich Nhat Hanh. The Raft is Not the Shore: Conversations Toward a Buddhist/Christian Awareness. (Boston: Beacon Press, 1975) p. 69.

I want to return for a moment to the NPR segment, "Capture Or Kill? Lawyers Eye Options For Terrorists" I mentioned in my last post. On the subject of "detaining terrorists" the piece also contains the following:
University of Michigan law professor Monica Hakimi worked at the State Department in the last administration. She does not like the idea of long-term detention. But, she says, none of the alternatives seem much better.

"The benefit of capturing them is that we might be able to get from them certain intelligence that we can use to hunt down future terrorists," says Hakimi. "The cost is that once we capture them it's not really clear what we're supposed to do with them."
Hakimi is a 2001 Yale Law grad--one of America's 'best and brightest' young scholars. In "International standards for detaining terrorism suspects: moving beyond the armed conflict-criminal divide" (Case Western Reserve Journal of International Law 40.3 (Fall 2009)), the solution she articulates to the problem of "what we're supposed to do with them" is, in the main, the legalization of existing illegal practices of "administrative detention."

The current dilemma facing governments, according to Hakimi, is two-fold. First, many prisoners from the "fight against transnational al jihadi groups" are seized "away from any recognizable battlefield ... in houses, on street corners, and at border crossings around the globe." Thus, the "law of armed conflict" is inapplicable for justifying their imprisonment.

Second, criminal procedure is no good because "its focus is retrospective, rather than prospective; it is maladroit for transnational operation; and it often fails to accommodate the tools used and evidence available in terrorism cases." Another way of putting this is that a criminal justice approach won't work because you are not normally allowed to prosecute "precrime;" other countries might not want to or be able to cooperate in your non-battlefield raids on their populace; most courts won't accept evidence obtained by torture or otherwise in violation of due process principles. In short, you just can't easily lock up as many people as you might want to lock up.

What's a poor government to do? According to Hakimi, "pure security-based detention" are permitted under "An alternative legal framework [that] already exists under human rights law in the form of administrative detention." She notes approvingly that "India and Israel--two states with long histories of trying to combat transnational terrorism--consistently have used such detention for that purpose." Her argument here rests in large part on her contention that "pure security-based detention is permitted under the ICCPR," i.e. the International Covenant on Civil and Political Rights (she also cites the European Convention for the Protection of Human Rights and Fundamental Freedoms in support of her argument but I do not mention it here because the US is not a state party to that treaty).

In effect, what she has done is to take the ICCPR--a treaty putatively designed to impose obligations on each state party to respect the rights of "all individuals within its territory and subject to its jurisdiction" (Article 2)--and turn it into an instrument justifying repression of individuals by state parties under the rubric of human rights.

I would like to be able to say that Hakimi's is a completely incredible reading of the ICCPR but that wouldn't be true. For while there is no affirmative provision in the treaty for "administrative" or "security-based detention" and the only articles explicitly mentioning detention restrict it, the state parties generously gave themselves the right to ignore most of the individual rights (incl., most crucially, Article 9) during "time of public emergency which threatens the life of the nation ..."(Article 4). (I should note that Hakimi does not rely on Article 4 for her argument but interprets Article 9 as making implicit provision for administrative detention).

In concluding, Hakimi says:
International practice demonstrates that, although most states have declined to detain non-battlefield terrorism suspects based on the law of armed conflict, many are looking for options for incapacitating these suspects outside the criminal process. The bipolar paradigm for thinking about non-battlefield detentions--as armed-conflict or criminal--is out of step with that practice and is mistaken as a matter of law. Human rights law permits administrative detention for reasons of national security, subject to important constraints. Those constraints are not now sufficient in the counterterrorism context. But if the law in this area is developed, administrative detention may strike the most appropriate balance between liberty and security for certain categories of terrorism detainees.
Get it? The law needs to catch up--to be "developed"--to what governments are already doing. Hakimi is a fine example of what Gramsci called "experts in legitimation" and one wonders how human societies made it this far without the benefit of her helpful take on human rights law. I couldn't help being reminded by Hakimi's arguments of her colleague Alan Dershowitz's call to legalize torture.

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