Human Rights Institute Launches Group to Oppose Terror Courts and Preventive Detention

Human Rights Institute Launches Group to Oppose Terror Courts and Preventive Detention
By James Vescovi

Columbia Law School’s Human Rights Institute has formed a Detention without Trial Working Group (DWTWG) to counter supporters of specialized terror courts and long-term preventive detention of terrorism suspects.  The group also hopes to influence the administration of President Barack Obama, which is making key decisions about future treatment of terror detainees.

The effort, coordinated at Columbia by Professor Sarah Cleveland, the Louis Henkin Professor of Human and Constitutional Rights and co-director of the Law School’s Human Rights Institute, includes two partner organizations: the Center for American Progress and the National Litigation Project at Yale Law School.  Since its formation in summer 2008, the working group has submitted written testimony to a hearing on reestablishment of the rule of law held by the Senate Judiciary Committee. In addition, a DWTWG position paper, submitted to Obama’s transition team, has triggered an ongoing dialogue with the working group regarding the closing of Guantánamo and future detention policy.  

Cleveland and other members of the Working Group met in mid-December with members of the Obama transition team and incoming administration officials who included White House Counsel Greg Craig, Dawn Johnsen, David Barron, Marty Lederman and Mary De Rosa.

At the meeting, which focused on issues surrounding the closure of Guantánamo, DWTWG members urged the transition team to conduct a broad, independent review of the basis for holding the more than 200 remaining detainees, and to capitalize on the Obama administration’s international goodwill by using all diplomatic tools at the administration’s disposal to secure receiving states for most of the detainees.    

Among DWTWG’s policy recommendations for the new presidential administration are:

•    Closing the prison at Guantánamo Bay; detainees presumed to have committed crimes should be given trial in federal courts on U.S. soil;
•    Ending existing military commissions and specialized terror courts;
•    Applying a zero-tolerance rule regarding torture and cruelty;
•    Closing all secret prisons; and
•    Bringing suspected terrorists within the rule of law by heeding constitutional principles, the criminal justice system and international legal regimes.

In addition, the DWTWG stressed that the administration’s presumptive approach to the Guantánamo detainees should be release or criminal prosecution before Article III courts, and that the administration should not use the past mistakes of Guantánamo to establish any new legislative regime for the future detention of terrorism suspects.
Impetus for the working group’s creation was “a lack of organization among scholars who oppose preventive detention and terror court regimes,” said Cleveland. “Much of the intellectual energy in legal academia has been devoted to developing proposals for national security courts and the long term detention of terrorism suspects.  The goal of our working group has been to encourage scholarly thinking, research and debate as an intellectual counterweight to the pending reform proposals and to provide scholarly guidance to the advocacy community.”   

The DWTWG comprises primarily legal academics with expertise in constitutional law, criminal law, international humanitarian and human rights law, foreign relations and immigration law. Members hail from Columbia, Yale, Harvard, Stanford and other leading law schools. Members also include experts from other fields, including the U.S. military and the FBI. Together, they are exploring the legal and policy implications of current proposals for the detention without trial of terrorism suspects, according to Cleveland. The primary author of the working group’s position paper was Professor Catherine Powell, a faculty member at Fordham Law School and senior fellow at the Center for American Progress.

The DWTWG held a daylong meeting in June after the Supreme Court’s decision in Boumediene v. Bush, which recognized a constitutional right to habeas corpus for the Guantánamo prisoners. The discussions addressed a range of issues, including constitutional doctrines relevant to preventive detention. Columbia Law School Professor Jeffrey Fagan delivered a presentation on empirical knowledge on the accuracy of predictions of future dangerousness of detainees and the risk of false positives in this context.

Other topics discussed included the experience with preventive detention in France, the United Kingdom and Israel and international humanitarian law principles relating to detention of combatants in armed conflicts. Since the meeting, the group members have continued a dialogue among each other about productive legal and policy approaches to these questions.  

DWTWG members also are closely following al-Marri v. Pucciarelli, a case pending before the U.S. Supreme Court, that if it procedes, will decide whether the Bush administration had the legal authority to bypass U.S. civilian laws and to hold people in military custody indefinitely based on their suspected ties to terrorists. Ali al-Marri, a native of Qatar, entered the United States on Sept. 10, 2001, ostensibly to work towards a master’s degree at Bradley University, where he’d previously earned a bachelor’s degree. Three months later, the FBI arrested him and found on his laptop computer information about cyanide and other poisons. Officials also learned he had received payments from al-Qaida financiers. The Supreme Court’s decision is expected in mid-2009.

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