United States Policy toward Detainees: a Dossier

Journal Articles

Disclaimer: The materials in this section are from sources outside the U.S. Government and should not be construed as an endorsement of the views or privacy policies contained therein or as official U.S. policy.

Wittes, Benjamin. TERRORISM, THE MILITARY, AND THE COURTS: WHAT KIND OF PROCESS IS DUE DETAINEES? Policy Review, June/July 2007, var. pages.

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"This essay, rather, is for those who live in that gulf between the centers of gravity of elite and mass opinion — those not content to give the president a free hand in a messy, unending quasi-war but also suspicious that courts can and should supervise detentions and interrogations and doubtful that such operations are, in any event, easily subjected to absolute moral rules. This is uncomfortable territory, for the slope is indeed as slippery as slopes get — and slippery, I should say, on a hill with two distinct bottoms. At one lies a government capable of torture with impunity, the very essence of tyranny. At the other lies a government incapacitated from expeditiously taking those steps necessary to protect the public from catastrophic attack. Those of us who occupy this space stand vulnerable to the charge of having forsaken American values and to the charge of having done so with insufficient boldness to enable the executive branch to win. In reality, however, this is the intellectual and practical territory in which wars have been won with liberty preserved. If the United States is to win the war on terror now in the context of stable, democratic, constitutional government, I venture the guess that it is within this space — not with a dogmatic commitment to executive power, nor with an undying faith in the wisdom of judges — that it will do so." Benjamin Wittes is a visiting fellow at the Brookings Institution and a distinguished visiting fellow at the Hoover Institution.

Dorf, Michael C. THE DETENTION AND TRIAL OF ENEMY COMBATANTS: A DRAMA IN THREE BRANCHES. Political Science Quarterly, Spring 2007, pp. 47-58.

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The author "describes the interactions among the three branches of the federal government in addressing the detention and trial of captives in the war in Afghanistan and the broader 'war on terror.' He explains that the Supreme Court’s repeated rejections of the Bush administration’s sweeping assertions of wartime authority have erected few insurmountable obstacles to administration policy. Instead, the Court has required the administration to seek authority from Congress, which in turn has shown little appetite for reining in the President." Michael C. Dorf is Isidor and Seville Sulzbacher Professor of Law at Columbia Law School.

Nowak, Manfred. WHAT PRACTICES CONSTITUTE TORTURE?: US AND UN STANDARDS. Human Rights Quarterly, November 2006, pp. 809-843.

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"This article is a response to the attempts of the US government to redefine torture in a highly restrictive sense and at the same time distinguishing it from other forms of cruel inhuman or degrading treatment (CIDT). To this end, the author undertakes a short analysis of the understanding of the concept of torture and CIDT by the present US Government and asks whether this interpretation corresponds to the definition of torture in Article 1, Convention against Torture (CAT). An analysis of the techniques authorized by US Secretary of Defense Donald Rumsfeld for the interrogation of Guantanamo detainees is also carried out in light of applicable UN standards and international case law." Manfred Nowak is Professor of Constitutional Law and Human Rights at the University of Vienna and Director of the Ludwig Boltzmann Institute of Human Rights (BIM). He holds an LLM. from Columbia University, New York and a Ph.D. from Vienna University. Since 1996, he has served as Judge at the Human Rights Chamber for Bosnia and Herzegovina, and, since 2000, as Chairperson of the European Master Programme on Human Rights and Democratization (EMA) in Venice.

Katel, Peter and Kenneth Jost. TREATMENT OF DETAINEES: ARE SUSPECTED TERRORISTS BEING TREATED UNFAIRLY? The CQ Researcher, August 25, 2006, pp. 673-696.

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"The Supreme Court recently struck down the Bush administration's system for holding and trying detainees at the U.S. Naval base at Guantánamo Bay, Cuba. The administration had maintained that the Geneva Conventions did not protect alleged terrorists captured in Afghanistan and other battlefields in the five-year-old war on terror, and critics say that policy led to the use of abusive interrogation methods, such as 'water-boarding' and sleep deprivation. The critics, including top military lawyers, successfully argued that the United States was violating the laws of warfare. They also opposed military commissions the administration has proposed for conducting detainee trials. Bush said the war on terrorism required the commissions' streamlined procedures, which deny some rights guaranteed by the conventions. The court's decision leaves Congress with two options: require detainees to be tried under the military's existing court-martial system or create a new, legal version of the administration's commissions." Peter Katel and Kenneth Jost are editors at the CQ Researcher.

Slater, Jerome. TRAGIC CHOICES IN THE WAR ON TERRORISM: SHOULD WE TRY TO REGULATE AN CONTROL TORTURE? Political Science Quarterly, Summer 2006, pp. 191-215.

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"What should be done about the problem of torture in the war on terrorism? Which is better—or worse: the continuation of a principled but ineffective 'ban' on torture, or an effort to seriously regulate and control torture, at the price of its partial legitimization? Until 11 September 2001, the issue scarcely arose. Since the end of the eighteenth century, nearly every civilized society and moral system, certainly including the Judeo-Christian, or Western, moral system, in principle (although not always in practice) has regarded torture as an unmitigated evil, the moral prohibition against which was to be regarded as absolute. Since September 11, however, many Americans—not just government officials, but a number of moral and legal philosophers, as well as media commentators—are far from sure that torture must be excluded from our defenses against truly catastrophic terrorism." Jerome Slater is a frequent contributor to Political Science Quarterly, and is a university research scholar at the State University of New York at Buffalo. He is working on a history of U.S. policy in the Arab-Israeli conflict.

Foot, Rosemary. HUMAN RIGHTS IN CONFLICT. Survival, Autumn 2006, pp. 109–126.

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"The language of war has a recognized and intimate relationship with the abuse of a core set of civil and political rights. Detention without trial, arbitrary arrest, disappearance, torture and the like soon result once a political authority decides to describe a conflict in which it is involved as 'war'. National or regime security takes centre stage, security ideologies play a stronger role, and the means employed push at the boundaries of the acceptable. This close association between conflict and human-rights abuse, if no other reason, should make us pause before we too readily resort to the language of war. The Cold War and the current 'global war on terror' ? to use the US term ? are no exceptions to this general finding. Disappearance, torture and extra-judicial killings have been features of both. The struggle against terrorism has generated a sense of impunity for actions that threaten many different groups." Rosemary Foot is Professor of International Relations and Swire Senior Research Fellow in the International Relations of East Asia, St Antony’s College, Oxford.

Anonymous. DOES THE TREATMENT OF PRISONERS AT THE DETENTION FACILITY IN GUANTANAMO BAY VIOLATE INTERNATIONAL LAW? International Debates, April 2006, pp. 97-126.

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"Critics accuse the United States of lacking a legal basis for the detentions and using force-feeding, solitary confinement, and other interrogation techniques that are tantamount to torture. They argue further that the situation at Guantanamo contradicts basic American values, hurts the United States' reputation around the world, and serves as a recruiting tool for extremists. Many also contend that the detainee policy could be invoked by other regimes to justify their poor human rights practices. The Bush Administration maintains that the prisoners at Guantanamo are dangerous men with information that is vital to the war or terrorism, and that they are treated humanely and in a manner consistent with international laws. If released, U.S. officials maintain, the detainees could launch further attacks against the United States and its allies. They cite prior wars in which the United States has taken prisoners and point out that such detentions are inherently indefinite since it is impossible to predict when a conflict will end. The controversy poses an array of legal questions, not the least of which are what constitutes an enemy combatant and how war and justice should be defined in the twentyfirst century. The ruling on the Hamdan case, due by July, may shed some light on these issues."

Echeverria, Gabriela and Elizabeth Wilmshurst. TORTURE: AN OVERVIEW OF THE LAW. International Law, May 2006, pp. 1-13.

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"At a time when the issue of torture forms a central part of the debate over national and international security this new paper attempts to outline what torture is, how it is defined in law and what obligations governments have when dealing with it. What is torture? How is torture distinguished from lawful interrogation techniques? Is torture prohibited under all circumstances? What if there is an imminent threat to the public: the so-called ticking bomb scenario? What obligations do governments have? What is ‘extraordinary rendition’? How can the law against torture be enforced? This paper addresses these and other topical questions." Gabriela Echeverria is Legal Adviser (International) at the Redress Trust. Elizabeth Wilmshurst is Senior Fellow, International Law, Chatham House.

Ardiente, Maggie. EVERYTHING BUT THE TRUTH: ALLEGATIONS OF ABUSE AND TORTURE AT GUANTANAMO BAY. The Humanist, Jan-Feb 2006, var pages.

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"Despite denying human rights abuses, the White House still seeks CIA exemption from a torture ban-and the truth about Gitmo remains elusive."
 

Bellamy, Alex J. NO PAIN, NO GAIN? TORTURE AND ETHICS IN THE WAR ON TERROR. International Affairs, January 2006, pp. 121-148.

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"Is the use of torture ever justified? This article argues that torture cannot be justified, even in so called ticking bomb cases, but that in such extreme situations it may be necessary. In those situations, judgements about whether the use of torture is legitimate must balance the imminence and gravity of the threat with the need to prevent future occurrences of torture and maintain a normative environment that is hostile to its use. The article begins by observing that the use of torture and/or cruel and degrading treatment has become a core component of the global war on terror. It tests the claim that the use of coercive interrogation techniques does not constitute torture, showing that similar arguments were levelled by both the British and French governments in relation to Northern Ireland and Algeria respectively and found wanting. It then evaluates and rejects Dershowitz's claim for the legalization of torture and the more limited claim that torture may be permissible in ticking bomb scenarios. In the final section, the article questions how we might maintain the prohibition on torture while acknowledging that it may be necessary in some hypothetical cases." Alex J. Bellamy is Senior Lecturer in Peace and Conflict Studies at the University of Queensland, Australia. He is the author of Just wars (2006), International society and its critics (2005), Understanding peacekeeping (with P. Williams and S. Griffin, 2004) and Kosovo and international society (2002). He is currently writing a book on the ethics of terrorism.