Getting Real: Reforming international law governing the detention of terrorist suspects

The US Supreme Court has made a start on formulating such a scheme in domestic law, holding that detainees must have some opportunity to challenge their designation as an “unlawful combatant” before a neutral decision-maker, but accepting that significant curtailment of the rules of evidence may be necessitated by national security considerations. Yet the court upheld the legitimacy of indefinite detention if the “unlawful combatant” designation is affirmed.

A more liberal regime is surely appropriate if we are to achieve a legitimate balance between security interests and individual liberties.

Historically, the Habeas Corpus Act of 1679 gave authorities approximately three to six months to indict a detainee for a felony or high treason. Such a time frame might well be an appropriate deadline for indicting non-citizen terrorist suspects.

Suspects would be granted access to court-appointed counsel, who would be subject to appropriate security checks. While suspects would not necessarily be entitled to see all the evidence against them, government assertions of confidentiality would be assessed by the judge, with hearings relating to sensitive material taking place in the absence of the accused, but in the presence of counsel. Where necessary, hearsay evidence would be accepted from soldiers and intelligence agents on deployment.

Such a system would not, of course, satisfy legal purists. Those purists should appreciate that the rules they would like to impose, and for which they disingenuously assert support in existing international law, will never be accepted by governments or the public. Even favourable judicial rulings will merely lead to legislative reform. The stakes are simply too high.

Until international law changes to conform to the post-September 11 threat environment, it will remain an academic pursuit: a fine subject for debate in the faculty room, but irrelevant to the conduct of the global war on terror.