Author's Note: With the news of President Obama's plan to make indefinite detentions a permanent feature of our legal landscape, we thought it apropos to re-publish an updated, edited excerpt from a law review article we wrote in 2006 (THE DANGEROUS WORLD OF INDEFINITE DETENTIONS: VIETNAM TO ABU GHRAIB, by Jennifer Van Bergen & Douglas Valentine,
Case Western Reserve Journal of International Law, Volume 37 (Nos. 2 & 3) , pp. 449-508 (2006).
Where you find administrative detentions,you are likely to find torture. This connection exists even where it is clear that investigations and screenings leading to such detentions are, as Alberto Gonzales put it, "not haphazard, but elaborate, and careful . . . reasoned and deliberate."
This reason is simple and can be traced to the elements of administrative detention itself: the absence of human rights safeguards and normal legal guarantees such as due process, habeas corpus, fair trial, confidential legal counsel, and judicial review; vague and confusing definitions, standards, and procedures; inadequate adversarial procedural oversight; excessive Executive Branch power stemming from prolonged emergencies; and the involvement of the Central Intelligence Agency, or other secret, thus unaccountable, Executive Branch agencies.
Without such protections, justice does not work and human rights are jeopardized. As William F. Schultz, Executive Director of Amnesty International, put it:
"[W]e are witnessing not just a series of brutal but fundamentally independent human rights violations committed by disparate governments around the globe. [W]e are witnessing something far more fundamental and far more dangerous. [W]e are witnessing the orchestrated destruction by the United States of the very basis, the fragile scaffolding, upon which international human rights have been built, painstakingly, bit by bit by bit, since the end of World War II."
This is a remarkable statement that was originally made about the Bush Administration, but it applies equally as well now to the Obama Administration. The system was intentionally broken by the Bush Administration, just as it was by the Johnson and Nixon Administrations during the Vietnam War. And now Obama plans to sanctify this wrong and make it a permanent feature of American law.
Obama's indefinite detention follows, at least in idea, the precedent set by and codified in the PATRIOT Act, enacted six weeks after 9/11. Section 412, which is still on the books, provides for the "mandatory detention of suspected terrorists." This section nowhere refers to the detentions as "administrative detentions," which result from administrative (that is, Executive Branch), not judicial, determinations. Yet this is exactly what they are. And they have been used before. The U.S. government's internment of Japanese immigrants during the Second World War is perhaps the most recognizable example.
Section 412(a) authorizes the Attorney General to take into custody any alien whom he certifies as a terrorist. The alien may be detained indefinitely, in renewable periods of six months, as long as the Attorney General determines that he is a threat to national security, or endangers some individual or the general public.
In addition to PATRIOT Act detentions, the November 2001 Authorization to Use Military Force (AUMF), which preceded the PATRIOT Act, has been used by the DOJ to justify administrative detentions.
Scholars have raised concerns about the PATRIOT Act detention provisions, as well as detentions under AUMF, which allow the Secretary of Defense to detain designated alien terrorist suspects without the restrictions that Section 412 contains. Additionally, military detentions of U.S. citizens Yaser Esam Hamdi, Jose Padilla, and Ali Saleh Kahlah al-Marri have raised concerns. President Bush, citing his power as Commander-in-Chief and the laws of war, unilaterally declared these individuals "unlawful enemy combatants" subject to indefinite detention without trial or access to an attorney and without providing for a status determination hearing by a competent tribunal, which is required by the Geneva Conventions. The central concern raised by qualified legal observers about these detentions generally involves the important issues of due process and other constitutional and/or human rights guarantees.
Administrative detentions -- sometimes called preventive detentions -- are, by definition and practice, sought only during "national emergencies." The emergency is the rationale for depriving suspected terrorists of adequate due process or human rights safeguards. A declaration of a national emergency is generally made unilaterally by the President and, once declared, the administrative detention laws may stay on the books for decades. This is one of the primary reasons why they are so dangerous, for without any Congressional determination of the beginning or end of hostilities, these inherently anti-democratic laws may be used for purposes of political repression.
However, few legal scholars or government officials have discussed the historically established connection between administrative detentions and torture. The subject only came into public consciousness with the revelation that U.S. soldiers were torturing terrorist suspects at Abu Ghraib Prison in Iraq, Bagram Airbase in Afghanistan, and the detention facilities at the U.S. Naval Base in Guantanamo, Cuba. Since then, American and foreign journalists and human rights activists began to raise suspicions, subsequently borne out, that U.S. soldiers and CIA officers were routinely torturing terrorist suspects at numerous detention centers around the world. Nonetheless, to date, nothing has been done to ameliorate concerns about these detentions.
The conjoining of administrative detentions and torture is sadly by no means new to U.S. Government policies and practices. Specifically, during the Vietnam War, the United States engaged in a massive program of indefinite administrative detentions in South Vietnam of persons considered "dangerous to the national security" that engendered widespread torture and deaths of terrorist suspects.
There are many similarities between the Vietnam detentions and those used in the War on Terror, and those similarities are found not only within the procedures themselves but in the rationales for and policies behind them and even in the conditions of fear that created them.The Vietnam detention procedures provide a clear and compelling flow chart of the web of connections between administrative detentions, intelligence laws, national security courts (i.e. courts intended to deal exclusively with national security concerns), violations of international law (particularly the Geneva Conventions), and torture. These components now also appear in U.S. law and policies in the War on Terror and are continued, codified, and sanctified in Obama's intended executive order.
One would have thought that a nation which was in large part responsible for the rescue of tens of thousands of Concentration Camp survivors and was a judicial participant in one of the most significant war crimes tribunals in history, the Nuremburg trials, would know better. How American officials could justify the detention camps in Vietnam, knowing about the torture and murders of innocents in them, after having witnessed Hitler's internment camps and learned of the horrors he perpetrated in them, is an unanswered question. But, after the revelations of Vietnam -- which all came out in congressional hearings in 1971 that led to both the repeal of the EDA and ultimately by degrees to "reforms" of the CIA's Phoenix Program, contributing to the end of that protracted War, -- Section 412 of the PATRIOT Act, Bush's Military Commissions and unlawful enemy combatant designations, and now, Obama's executive order establishing permanent indefinite detention are inexcusable.
For the full law review article, click here.
Jennifer Van Bergen, J.D., M.S.I.E., is the founder of the 12th Generation Institute, and author of THE TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA (Common Courage Press, 2004) and Archetypes for Writers: Using the Power of Your Subconscious (Michael Weise Productions, 2007). She is currently working under contract with Bucknell University Press on a biography of Leonora Sansay, an early American novelist who was involved in the Aaron Burr Conspiracy, and on a screenplay about the conspiracy. She can be reached at email@example.com.
Douglas Valentine is the author of numerous articles and five books: THE HOTEL TACLOBAN (1984), THE PHOENIX PROGRAM (1990), TDY (2000), THE STRENGTH OF THE WOLF (2004), and THE STRENGTH OF THE PACK (2009) (the latter two are histories of federal drug law enforcement). See: http://www.douglasvalentine.com/.