THE COMPANY WE KEEP:
COMPARATIVE LAW AND PRACTICE REGARDING THE DETENTION OF TERRORISM SUSPECTS
A White Paper
Working Group on Detention Without Trial
A Project of the Human Rights Institute, Columbia Law School;
International Law and the Constitution Initiative, Fordham Law School; and
the National Litigation Project, Yale Law School
“Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law.”
—Lord Nicholls of Birkenhead, A v. Home Secretary,  U.K.H.L. 56.
Proponents of a new U.S. system of “preventive detention”1 for terrorism suspects often rely upon assertions that other nations employ similar tactics.2 But a survey of global practices reveals that no advanced democracy other than India and Israel employs a system of indefinite preventive detention without criminal charge.3 Our closest allies—including the U.K., France, Spain, Germany, Australia, and Canada —do not resort to detention outside of the criminal justice or immigration contexts.4 Instead, these nations have narrowly adapted existing criminal and immigration regimes to combat terrorism without sacrificing core principles.
In the United Kingdom, detention without charge is limited to 28 days as part of a criminal investigation. France restricts detention without charge of terrorism suspects to 6 days; Spain limits pre-charge detention to 13 days. Germany, Denmark, Italy, and Norway apply ordinary criminal procedures to suspected terrorists. Australia limits detention without charge to 14 days and bars interrogation in that period, while Canada narrowly restricts detention to the immigration deportation context.
International human rights law generally proscribes preventive detention except where absolutely necessary and proportionate.5 Administrative detention for security purposes may theoretically be permitted under international law, but only in the presence of a “public emergency that threatens the life of the nation,”6 and where criminal prosecution or less restrictive alternatives are impossible.7 In all events, indefinite detention without trial8 and detention for purely intelligence-gathering purposes are highly suspect.9
Moreover, the experiences with emergency detention in India and Israel demonstrate the great danger of sidestepping the criminal process: definitions remain impossibly elastic, the pressure for intelligence-gathering yields coercive treatment, and processes are frequently shrouded in secrecy. The use of long-term preventive detention without charge most often corresponds with wide-ranging human rights violations. Most important, there is no evidence that preventive detention works. Comparative studies of terrorism stretching back more than twenty years have concluded that draconian measures—such as prolonged detention without trial—are not proven to reduce violence, and can actually be counterproductive.10
Finally, the number of people who have been subjected to detention without charge for more than three years by any democratic state, including India and Israel, is extraordinarily small. Application of such policies abroad thus contrasts sharply with the United States' ongoing detention of over two hundred detainees at Guantanamo and elsewhere.
In sum, long-term preventive detention overwhelmingly has been rejected by democratic states abroad.11 Our allies in Europe and North America have concluded that such detention is unwarranted, unproven and unwise, in marked contrast with the relative success of the criminal justice system in fighting terrorism. By contrast, indefinite detention without trial is a hallmark of repressive regimes such as Egypt, Libya, Syria, and apartheid-era South Africa, which held tens of thousands of government opponents in preventive detention as security threats during the last decades of white rule.12
Should the United States take the unprecedented step of implementing indefinite detention without trial for terrorism suspects, it would have profound consequences for the rule of law globally and for U.S. foreign policy. By acting outside accepted legal standards, we would embolden other nations with far worse human rights records to adopt sweeping regimes for long-term detention in response to internal or external threats, both real and perceived. Further erosion of the rule of law in nations such as Egypt and Pakistan could further destabilize these states, with dire consequences for global security. Moreover, taking an extreme position so far out of step with our European and North American allies would undermine our ability to gain their critical cooperation in international counterterrorism efforts.
EUROPE: SHORT-TERM DETENTION IN THE CRIMINAL JUSTICE SYSTEM
European nations detain terrorism suspects only in connection with ongoing criminal proceedings.13 The European Convention on Human Rights flatly forbids security-based detention where it is not connected with criminal or immigration proceedings. ECHR art. 5(1)(c) (permitting detention only “for the purpose of bringing [a person] before the competent legal authority . . . when it is reasonably considered necessary to prevent his committing an offense.”). The European Court of Human Rights has held that detention is lawful only if done in conjunction with the criminal or immigration process.14 As the examples below demonstrate, some nations have brief pre-charge detention periods for terrorism suspects, but even these short-term detentions must be made in consecutive extensions, pursuant to judicial oversight and with access to counsel.15
The United Kingdom is oft-cited as employing “preventive detention.”16 That assertion, however, vastly exaggerates the limited scope of British detention powers. Moreover, it ignores the British experience with the Irish Republican Army that led it expressly to reject military approaches to counterterrorism. As a British government committee noted in April 2002: “Terrorists are criminals, and therefore ordinary criminal justice and security provisions should, so far as possible, continue to be the preferred way of countering terrorism.”17
The British Experience in Northern Ireland
The lessons from its experience in Northern Ireland have caused the United Kingdom to reject long-term preventive detention. Faced with escalating violence in 1971, the United Kingdom invoked emergency powers and British troops began a campaign of raids resulting in the arrest of 342 IRA suspects on the first day and 2,375 in the first six months.18 Ultimately, thousands of people—the vast majority from the Catholic community—would be interned before the abandonment of the internment program in 1975.19
By any measure, the internments and other heavy-handed tactics of the early 1970s were a terrible failure. Based on poor and outdated intelligence, the raids alienated thousands of people and resulted in relatively few solid arrests.20 Meanwhile, the government’s tactics alienated large sections of the Catholic community and broadened support for the IRA.21 In the words of former British Intelligence officer Frank Steele who served in Northern Ireland during this period: “Internment barely damaged the IRA’s command structure and led to a flood of recruits, money and weapons.”22
Put simply, the strategy was ineffective because security forces were unable to accurately identify and detain terrorists faster than they could be replaced. The British government finally took the decision to discard the power of internment in January 1998. Announcing the decision, the Junior Northern Ireland Minister Lord Dubs told the House of Lords: “The Government have long held the view that internment does not represent an effective counter-terrorism measure . . . The power of internment has been shown to be counter-productive in terms of the tensions and divisions which it creates.”23 Moreover, the British experience taught that delegitimizing terrorists as ordinary criminals rather than combatants was ultimately more effective.
Current British Approaches to Counterterrorism
The United Kingdom currently only permits pre-charge detention for terrorism suspects for a maximum of 28 days, and then only upon judicial review and in connection with an ongoing criminal investigation.24 A detainee has the right to judicial review and access to counsel within 48 hours of arrest.25 Continued detention may be permitted in seven day increments, totaling no more than 28 days,26 only upon a showing that “there are reasonable grounds for believing that the further detention … is necessary” to bolster the criminal investigation, e.g., either “to obtain evidence through questioning or otherwise, preserve evidence, or pending the result of examinations and analyses of already obtained evidence.”27 Additionally, authorities must certify that “the investigation in connection with which the person is detained is being conducted diligently and expeditiously.”28 For the first fourteen days, a designated magistrate judge reviews the detention application; between days fourteen and twenty-eight, a High Court judge conducts the review.29 The detainee and defense counsel may be denied access to evidence and barred from proceedings, but only during this 28-day period.30 Instead, the detainee is represented by special counsel who has been cleared to handle classified information.
The statistics on pre-charge detention suggest that extended detention is subjected to fairly rigorous judicial review and is rarely used. According to a report by the Home Office, magistrates have rejected or reduced some detention orders. Between July 26, 2006, when pre-charge detention was increased to 28 days, and October 2007, there were 204 arrests under the Terrorism Act, but only 11 suspects were detained for more than 14 days. (Eight of them where then criminally charged and three were released without charge.)31
It is notable that Parliament has rejected recent pressures to increase the detention period beyond 28 days. For example, in 2005, following the London bombings, the government pushed for a 90-day detention period. Parliament undertook a comprehensive study of the issue and concluded that the unprecedented increase was not warranted.32 Efforts in 2007 and 2008 to increase the detention period to 56 days and 42 days, respectively, were similarly defeated.33 Ongoing and mounting controversy also continues to shroud the British detention regime.34
But despite the swirl of controversy, it is essential to note that the debate in the United Kingdom has been over a matter of days prior to criminal charge, not years outside the criminal justice system. The notion of indefinite detention without trial has never been suggested by British authorities. As Prime Minister Gordon Brown stated during the debates regarding the 2008 extension proposal, “our first principle is that there should always be a maximum limit on pre-charge detention. It is fundamental to our civil liberties that no one should be held arbitrarily for an unspecified period.”35
Failed Immigration Detention
The United Kingdom tried—and abandoned—a “three-walled” system of preventive detention through immigration law. Under the Anti-Terrorism, Crime and Security Act of 2001, foreign terrorist suspects who could not be deported due to the risk of ill-treatment in violation of Article 3 of the ECHR could be detained, potentially indefinitely.36 In so providing, the United Kingdom derogated from the guarantee under Article 5 of the ECHR of liberty from immigration detention except where there exists a realistic prospect of removal.37 In 2004, the House of Lords held that immigration detention where deportation was impossible was not justified by security concerns alone.38 The Law Lords concluded that prolonged security detention of non-citizens only was arbitrary and discriminatory, and therefore incompatible with the ECHR. In particular, the majority pointed to the fact that terrorism suspects may be citizens, and whatever mechanisms exist to curtail the threat against citizen terrorism suspects presumably must be available with respect to non-citizens.39 The United Kingdom declined to adopt an equivalent detention regime for citizens, and the detention law was allowed to lapse in 2005. The short-lived ATCSA resulted in the detention of only 17 individuals.40
Parliament replaced the ATCSA system not with detention, but with highly controversial “control orders” restricting personal movement. The Prevention of Terrorism Act 2005 permits the application of control orders to individuals “for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity.”41 In reaching that conclusion regarding an individual, the Home Secretary must consult with the chief of police to determine that criminal prosecution is not possible. There are two forms of control orders: non-derogating control orders and derogating control orders. While both derogating and non-derogating control orders mandate ongoing home searches and surveillance and seriously restrict personal movements and communications, “derogating” control orders restrict individual liberty sufficiently to be incompatible with Article 5 of the ECHR. The procedural checks on derogating control orders are significantly more stringent than are those on non-derogating control orders.42 Consequently, the government has attempted to treat even the most stringent of orders as non-derogating in order to avoid heightened oversight. This has sparked litigation that has ultimately led to judicial rulings from the House of Lords in two important 2007 cases involving the boundary between derogating and non-derogating control orders.43 As of March 2009, thirty-eight people have been subjected to non-derogating control orders, and 15 are presently under such orders.44
The Secretary of State may make a non-derogating control order if he or she has “reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity” and “considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.”45 In order to make the control order, the Secretary must apply to a regular court for permission, which will determine at a preliminary hearing whether the order is “obviously flawed” in process or substance.46 In the preliminary hearing, the court may consider the matter in the absence of the individual to whom the order applies, without that individual being notified of the hearing and without the individual being allowed to make representations before the court.47 However the individual must be notified of the preliminary decision, and must be given the opportunity to make representations within seven days of the court’s decision to direct the case to a full hearing.48 At the full hearing, the court reviews the order to determine whether the Secretary of State’s decision was “flawed.”49 Non-derogating orders may be issued for up to twelve months, and may be renewed indefinitely, subject to ongoing judicial review.
The standards of proof and evidence for the imposition of control orders are lower than in criminal proceedings. The right of the accused to be present and to counsel is greatly truncated due to the use of classified evidence.50 Instead, the 2005 law permits the use of a “special advocate” to “represent the interests of a relevant party to relevant proceedings,” but also specifies that the advocate “is not to be responsible to the person whose interests he is appointed to represent.”51
The control order regime has provoked a wave of litigation and ongoing controversy. Human rights advocates have charged that the cumulative restrictions amount to a deprivation of liberty and a “flawed system that violates rights.”52 The House of Lords held that an 18-hour curfew combined with other restrictions on movement and communications was tantamount to solitary confinement, and therefore an unlawful derogation.53 Another case, involving a 16-hour curfew, is presently on appeal to the European Court of Human Rights.54
The “special advocate” system is also under serious doubt. The Law Lords determined that the use of secret evidence and a “special advocate” deprived two petitioners of a fair hearing, and ordered their cases to be reconsidered by a high court judge.55 The Court of Appeal nonetheless interpreted the Law Lords’ decision to permit fully ex parte hearings, and the case is presently back before the Law Lords.56 Should the House of Lords uphold the special advocates regime, it is very likely that the European Court of Human Rights would reject the system as violating the Article 5(4) right to a fair hearing. On February 19, 2009, the European Court rejected a very similar system of special advocates under the now-abandoned ATCSA. In that case, the court held that the United Kingdom had violated Article 5(4) because the defendants were unfairly deprived of their right to understand the nature of the evidence and charges against them.57
The 2005 law also facially contains a provision for preventive detention, but only if the security threat cannot be met by the criminal process or by less restrictive measures such as control orders. Because the government must consider filing criminal charges against anyone subject to pure security-based detention, extended detention is permitted in the United Kingdom only when the criminal process is deemed unavailable. It does not appear that the United Kingdom has ever detained anyone under the 2005 legislation.58 Moreover, it is doubtful that such security detention would pass judicial muster under the European Convention on Human Rights.
Despite decades of experience with terrorism domestically and abroad, France permits the detention of terrorism suspects only in conjunction with criminal charge and pending trial.59 Although special investigating magistrates handle all terrorism investigations, independent judges oversee ongoing pretrial detention, and a panel of regular judges presides over trials at which normal criminal procedural protections apply.60 The investigating judge may authorize pre-charge detentions longer than 48 hours, but no longer than 144 hours (6 days). After this point, the detainee must be criminally charged. Detainees have a right to counsel after 72 hours.61
Under French law, an independent judge oversees pretrial detention.62 Pretrial detention is permitted only “if deprivation of liberty is considered the only way to preserve material evidence, to prevent either witnesses or victims being pressured or to prevent those under judicial investigation and their accomplices from agreeing on false testimony; to protect the person under judicial examination; to prevent the person from absconding; or to put an end to the offense or to prevent its recurrence.”63 The initial detention period for serious terrorism-related charges is one year, renewable in 6-month increments up to four years.64
Despite its commitment to the criminal system, France has come under mounting criticism for its handling of terrorism prosecutions, particularly with respect to the combination of an extremely broad definition of “association of wrongdoers”65 and the prolonged pretrial detention of suspects.66 The role of the independent judge in reviewing pretrial detention is greatly hampered by the fact that the judge is wholly dependent upon the investigating magistrate and prosecutor’s case file.67 Indeed, some commentators have referred to the system as “a trompe-l'oeil guarantee.”68
Germany detains terrorism suspects exclusively under regular criminal procedures, an approach employed by numerous other European nations, including Denmark, Italy, Norway, Turkey, as well as Brazil and Colombia.69 Pre-charge detention may extend only up to 48 hours, at which point the civil section of the lower court reviews the detention70 and a criminal charge must be entered. Judicial review of ongoing pretrial detention occurs every six months. The lower court’s decision can be appealed to the district civil court and then to the regional civil court. Review upon appeal is a substantive review of the merits of the case, and new evidence may be presented.71 Access to counsel is provided at all stages of detention.
Under Spain’s criminal code, detainees suspected of terrorist activity may be held in pre-charge incommunicado detention for up to 13 days. An investigating magistrate of the National High Court must review the grounds for pre-charge detention within 72 hours.72 The magistrate may order an additional 48 hours of incommunicado detention in police custody. A 2003 amendment provides that a court may impose up to an additional eight days of incommunicado pre-trial detention for persons suspected of membership in an armed group or conspiracy with two or more persons.73 The magistrate may extend the initial period of incommunicado detention, up to a total 13 days. If an incommunicado order is issued, a duty solicitor is appointed, not a lawyer of the detainee’s choice. After the end of incommunicado period, the detainee may retain a lawyer of his choosing. After charge, as in France, the maximum pre-trial preventive detention period is four years for serious offenses.74 Habeas corpus is available throughout the entire detention period.75
Spain has come under increasing criticism for its method of terrorism prosecutions. Human rights advocates point out that detainees often spend up to five days in detention without seeing a judge, and up to 13 days without access to counsel.76 Moreover, during the lengthy period of pre-trial detention, “defense attorneys do not have access to critical information regarding the charges against their clients or the evidence against them, including the full grounds for remand to pre-trial detention.”77
OTHER COMMON LAW COUNTRIES: AUSTRALIA AND CANADA