On New Year’s Eve, President Barack Obama signed into law the post-9/11 practice of detaining terrorist suspects indefinitely without charge. Shock and awe waves rippled through the blogosphere in response to the move, not least because Obama had threatened to veto an earlier version of the bill. Other grumbles included its lack of temporal or geographic limitations, which signaled to some the potential for military detention of anyone, anywhere, anytime.
But despite congressional approval of the well-worn practice, most rights wonks don’t expect any significant change in the frequency or type of indefinite detentions going forward. They do, however, maintain that the practice breaches international humanitarian law and undermines counterterrorism efforts.
One such expert, Martin Sheinin, professor of international law and UN Special Rapporteur on human rights and counterterrorism from 2005 to 2011, spoke with me about the National Defense Authorization Act (NDAA) and its potential to derail US counterterrorism efforts.
The War on Law
To put the controversy in context, Mr. Sheinin explained why Washington supports indefinite detention:
“The NDAA builds upon the well-established rule in international humanitarian law (law of armed conflict) that during an international armed conflict combatants, i.e. soldiers of one of the states involved in the war, can be detained as prisoners of war until the end of hostilities. When there is an international armed conflict and when someone is a combatant, then such detention does not amount to arbitrary detention that would violate international human rights law.”
When the “global war on terror” was waged following 9/11, he said, the possibility of indefinite detention was extended to terrorism, “far beyond genuine situations of international or even non-international armed conflict. And it extends indefinite detention to persons who are not combatants. For instance, persons who are held to have provided substantial support to terrorism would be subject to indefinite detention.”
Against that background, Mr. Sheinan suggested several ways in which violating human rights in the course of countering terrorism can “backfire.” Rights violations can “add to causes of terrorism,” he said, “both by perpetuating ‘root causes’ that involve the alienation of communities and by providing ‘triggering causes’ through which bitter individuals make the morally inexcusable decision to turn to methods of terrorism.”
Further, “these kinds of legal provisions are always open for bad faith copying by repressive governments that will use them for their own political purposes.” Though such copying was found to be less common than expected, “repressive governments may do so for their own political purposes.”
“It is hard to see any practical advantage gained through the NDAA. It is just another form of what I call symbolic legislation, enacted because the legislators want to be seen as being ‘tough’ or as ‘doing something.’ The law is written as just affirming existing powers and practices and hence not providing any meaningful new tools in the combat of terrorism,” he concluded.
With Washington simultaneously fostering democratic transitions across the Middle East and North Africa and gambling on military exits from Iraq and Afghanistan, such “backfires” may well hamper development of the rule of law and respect for human rights when they are needed most.