It is disturbing, at the beginning of the 21st century, to be obliged to recall basic principles long enshrined in both national and international law and which one had assumed would be inviolate. Deprivation of liberty must be based upon grounds and procedures established by law, be formally recorded, and be open to review by a judicial authority. Further, all persons deprived of their liberty by a public authority should be held in facilities which are officially recognised for this purpose and placed under the responsibility of a clearly identifiable entity. The practice of secret detention constitutes a complete repudiation of these principles.
Secret detention can certainly be considered to amount in itself to a form of ill-treatment, both for the person detained and for members of his or her family. Further, the removal of fundamental safeguards which secret detention entails - the lack of judicial control or of any other form of oversight by an external authority (such as the ICRC) and the absence of guarantees such as access to a lawyer - inevitably heightens the risk of resort to ill-treatment. And in the light of the information now in the public domain, there can be little doubt that the interrogation techniques applied in the CIA-run facilities concerned have led to violations of the prohibition of torture and inhuman or degrading treatment.
In my forthcoming article in the Journal of Conflict and Security Law (advance access available here) I outline the international legal protections of habeas corpus (or an adequate alternative) and conclude – as Naomi has done in her post – that it is generally non-derogable. Indeed – although the article does not consider this element of the international legal standards – the writ’s increasingly close connection to the prohibition on torture might suggest a possible further elevation of the right to challenge the lawfulness of one’s detention to a jus cogens standard in the future.
The non-derogability of habeas corpus, of course, puts the US Constitution in conflict with international standards because it allows for the suspension of the writ in limited circumstances, however where there has been no such suspension (and the MCA certainly constitute a suspension within the meaning of Article I(9)(A)) the international standards certainly militate towards a universal guarantee of habeas (or adequate alternative) regardless of citizenship, suspected-terrorist status, and, indeed, the location of one’s detention. (And this is my argument in a different, forthcoming article!).
When he suspended habeas corpus Abraham Lincoln – who is now so closely associated with ‘counter-terrorist’ policy in both the United States and (bizarrely) Pakistan – asked whether all the laws but one were to be upheld for the sake of habeas corpus, however the increasingly sophisticated understanding of the writ belies the simplicity of this attitude. Allowing detainees to challenge the lawfulness of their detention does not mean that suspected terrorists could not and should not be detained (even if, perhaps, there is insufficient evidence to charge them) or that criminality (including terrorism) can not be rigorously countered. It simply means that the risk of (a) mistreatment of those detained, and (b) misidentification of people for detention is minimized.
Those who support the provision of habeas rights to suspected terrorist detainees in the ‘War on Terrorism’ are often presented as idealistic civil libertarians who do not understand the risks associated with sophisticated globalised terrorism. This is as much as a simplification of our camp as is the presentation of the current US Administration as Machiavellian power-grabbers. The position that I hold, certainly, is a pragmatic one: security may require the detention of individuals but the security-liberty tradeoff only allows for this if there are sufficient safeguards to ensure that only genuine risks are detained (and the release of hundreds of people, including former Guantanamo detainees shows this has not been the case), if there is a mechanism to ensure that status is frequently and effectively assessed (and the impressive Denbeaux studies show that the CSRT do not fulfill this), and if the fundamental rights of those in detention are respected remembering that the detention is supposed to be protective rather than punitive.
The availability of the writ of habeas corpus is as close as the common law world knows to fulfilling these three pragmatic and fundamental requirements.