University of Pittsburghâ€™s excellent JURIST blog today reports
on a draft bill before the Iraqi parliament which would allow for the release of approximately 5,000 current detainees in Iraq and provide those released with an amnesty. Although there are some quite severe difficulties with the Bill â€“ not least the fact that excludes from its provisions all those in US custody and those imprisoned for, inter alia, adultery and homosexuality â€“ and the fact that it is not targeted as a response to terrorism-related detentions, the Billâ€™s presentation does raise an important question: what will â€˜weâ€™ do with those detained on suspicion of terrorist activities when the â€˜War on Terrorismâ€™ ends?
To take Guantanamo Bay as an example, the United States has repeatedly asserted its desire to close the detention facility there but cites concerns about the destination and future conduct of detainees, including reluctance by â€˜home statesâ€™ to have their citizens repatriated, as one of the major obstacles to closure. In addition, any detainees who may have been subjected to unlawful treatment in detention including torture clearly pose a litigation risk to the United States. To this end, some insurance policies may cover people against mistreatment claims (see NYT piece here
). In addition, national security and separation of powers arguments may be successfully used to prevent litigation in US courts by those who claim to be the victims of such ill-treatment. For example, the DC Circuit court last week decided Rasul v Myers
in which the court , finding that the claimant could not succeed in a damages claim against the government, held:
The present case involves the method of detaining and interrogating alleged enemy combatants during a war–a matter with grave national security implications. Permitting damages suits by detainees may allow our enemies to â€œobstruct the foreign policy of our government.â€ Moreover, dealing with foreign relations is primarily delegated to the executive and legislative branches, see…and creating a damages action could produce â€œmultifarious pronouncements by various departments.â€ Nor does our government’s unanimous condemnation of torture answer this concern, since where to draw that line is the subject of acrimonious debate between the executive and legislative branches. Treatment of detainees is inexorably linked to our effort to prevail in the terrorists’ war against us, including our ability to work with foreign governments in capturing and detaining known and potential terrorists. Judicial involvement in this delicate area could undermine these military and diplomatic efforts and lead to â€œembarrassment of our government abroad.â€
Notwithstanding these potential protections from liability, per se, the release of prisoners who claim torture or serious ill-treatment might well have a masive reputational impact on the United States. Writing about this issue in a piece entitled â€œUnited States Policy Towards Enemy Detainees in the â€˜War on Terrorismâ€™â€ published in the Human Rights Quarterly
, the formidable scholar David Forsyth recently evoked the French-strategy following the Algerian war (i.e. of mass killings to prevent torture victims from speaking out) and wrote:
Accordingly, the democratic French, who had greatly contributed to the theory and practice of human rights, committed torture. And because the French had tortured, they could not put their enemies on trial; instead, they summarily executed them. Their efforts to sweep these atrocities under the rug for many years led to the loss of their self-respect, as well as the respect of many others, starting with the Arab-Islamic world. Torture may have helped the French win the battle of Algiers, but their policy of abuse led to many negatives, including increased domestic criticism and loss of reputation in the world; meanwhile their enemies failed to lessen their struggle. The Bush policy toward enemy detainees replicates much of this French experience.
US nationalism after 11 September 2001 has been less intolerant than some periods in US history; the Wilson and McCarthy eras quickly come to mind. But perhaps that is due to the lack of open, vigorous debate and dissent about Bushâ€™s security policies. Given this lack of serious domestic debate, the Bush Administration has been able to sustain its policy of abusive interrogation, even if it has had to clean up detention practices in military facilities. International criticism has been much less important than domestic factors, although the role of the ICRC is not without importance.
The situation is not totally new, not only by comparison to France in Algeria. During the Cold War, the United States then too spoke of freedom and human rights and the rule of law but acted in the shadows to overthrow elected governments and back murderous allies, as in Chile and Guatemala. But to paraphrase Satre in the earlier quote, why should Americans go to such trouble to be patriots if their country in reality stands for torture and other serious violations of fundamental human rights? The French have much to say on the subject.
A law such as that proposed in Iraq is unlikely to solve the problems to be faced by the United States at the â€˜cessation of hostilitiesâ€™ when even its (shaky) IHL grounds for detention are gone, but it may well become time to start thinking about strategy. Although the candidates for presidential nominations from both the GOP and the Democratic party have address Guantanamo and the â€˜War on Terrorismâ€™ (for a useful summary of GOP hopefuls’ approaches see here), none appear to have come up with a sustained strategy to avoid a repetition of what Forsyth might call â€˜the French lessonâ€™.