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Two Approaches to Detention Policy

JURIST Special Guest Columnist Jonathan Hafetz, Counsel with the Brennan Center for Justice at New York University School of Law, says that recent court rulings in the US (Boumediene) and Canada (Charkaoui) on the interpretation of laws governing the detention of terror suspects exemplify contrasting approaches to the balancing of rights and national security concerns and that the Canadian ruling, although certainly not perfect, exposes two important shortcomings of the American approach.

This op-ed was co-written with Brennan Center intern Anand Balakrishnan, a 2L at Yale Law School.


The U.S. Court of Appeals for the District of Columbia Circuit and the Canadian Supreme Court recently handed down opinions that exemplify two distinct judicial approaches to defining the legal bounds of counter-terrorist detentions. In both cases, the courts heard challenges to legislation limiting judicial review over the detention of suspected non-citizen terrorists—the Military Commissions Act of 2006 (“MCA”) in Boumediene v. Bush and the Canadian Immigration and Refugee Protection Act (“IRPA”) in Charkaoui v. Canada. The responses could not have been more different.

“Federal Courts have no jurisdiction in these cases,” Judge A. Raymond Randolph wrote in his 2-1 opinion for the D.C. Circuit in Boumediene. By upholding the MCA’s jurisdiction-stripping provisions as they apply to Guantanamo detainees, the D.C. Circuit tied the hands of the judiciary and granted the legislative and executive branches a blank check to detain non-citizens outside the sovereign boundaries of the United States, bereft of substantive constitutional or common law protections.

Already, the Executive has held thousands of detainees outside the U.S. borders. If upheld, Boumediene’s reasoning would sanction the creation of extra-territorial prisons beyond the law, notwithstanding the mounting evidence of individuals wrongfully detained in the administration’s “war on terror.” The decision would also help entrench an emerging two-tier justice system in which foreign nationals may be denied basic protections provided by the U.S. Constitution and international law.

Under the D.C. Circuit’s decision, Guantanamo detainees may be held indefinitely as “enemy combatants” based upon a summary decision by a Combatant Status Review Tribunal, which denies them the right to see the evidence against them, to have access to an attorney, to present evidence in their defense, and to have their case heard by a neutral decision-maker. No court can review the factual basis for their detention, including whether they are being held based upon evidence gained by torture and other coercion.

In contrast to the D.C. Circuit’s blanket authorization of the MCA, Canada’s Supreme Court took the opportunity in Charkaoui to fine-tune a piece of legislation—IRPA—to better balance the civil liberties of detainees against the pressing danger of terrorist activity. Put simply, Canada’s Supreme Court embraced its institutional responsibility to adjudicate the “fundamental fairness” of IRPA.

Charkaoui, a unanimous decision of nine justices, recognized both the real chance of error in detention decisions and the serious consequences of such mistakes. Charkaoui addressed the judicial review afforded by IRPA to permanent residents and foreign nationals detained as security threats. Under IRPA, government ministers are authorized to issue a certificate of inadmissibility for an individual deemed a security risk on terrorist grounds. Upon the issuance of this certificate, a non-citizen is automatically subject to detention. IRPA authorizes Canadian federal judges to review the reasonableness of this classification and detention decision. In such a review, however, any evidence the government declares secret is presumptively sealed from the defense and reviewed in camera with only the government and the judge in attendance, severely curtailing the detainee’s ability to contest the factual basis of his detention.

To underscore the danger of this detention scheme, the Canadian Supreme Court mentioned the case of Maher Arar, the Syrian terrorist suspect who was arrested at New York’s JFK International Airport and illegally rendered to Syria where he was detained for nearly a year and tortured. The court also discussed the Canadian Commission of Inquiry’s investigation into Arar’s rendition to show how easily an individual could be mistakenly labeled a security threat.

With the stakes so high, the Court explained, a detainee must be given every possible chance to contest the evidence marshaled against him and to prove his innocence. Therefore, the current statutory language was held inconsistent with the Canadian Charter guarantee of procedural protections.

The Canadian Court’s decision is by no means perfect. A recent article in the Globe & Mail points out that, as laudable as the Court’s reasoning was, Charkaoui may have erred too far on the side of national security, providing an inadequate guarantee of a fair hearing to detainees. Still, when compared with the D.C. Circuit’s reasoning in Boumedienne, the Charkaoui decision exposes two important shortcomings with the American approach to the detention of suspected terrorists.

First, the D.C. Circuit failed to understand the centrality of judicial review and due process to a liberal polity that respects the rule of law. The Supreme Court rejected this approach more than 2 ½ years ago in Rasul v. Bush, when it explained that “Executive imprisonment has been considered oppressive and lawless” since the Magna Carta. When Boumediene is appealed, the Court will have the opportunity to affirm that it meant what it said in Rasul — a decision that Charkaoui cites approvingly in support of the principle that “foreign nationals, like others, have a right to prompt review to ensure that their detention complies with the law.”

Second, the Charkaoui decision exposes the failure of Congress and the Executive to signal to the judiciary and the American people that mistakes have been made in post-9/11 detentions and that the reigning policy should be rethought. The Charkaoui Court could point to the Arar Inquiry to support its decision to grant detainees greater procedural rights. American courts can point to no similar acknowledgement by the U.S. government that mistakes have been made and that existing procedures may have contributed to the torture of innocent individuals.

It is doubtful that President Bush will offer an apology to Jose Padilla for wrongly detaining him as an “enemy combatant” or to Maher Arar for the United States’ complicity in his illegal rendition to Syria. Congress, however, can step in where the Executive will not, calling for greater oversight of counter-terrorist measures, hearings on extraordinary detention and the elimination of habeas corpus, and investigations into the procedures whereby classifications and decisions to detain have been made.

Unlike Boumediene, Charkaoui seeks to promote a rights-respecting approach to counter-terrorism policy. Through an active judiciary and a national government willing to admit and learn from its previous mistakes, Canada has made steps to crafting a more humane approach to terrorist policy. It is precisely the United States’ refusal to embrace this approach that has made Guantanamo a symbol of injustice and lightening rod for criticism throughout the world.


Jonathan Hafetz is an attorney at the Brennan Center for Justice at NYU School of Law.

February 28, 2007


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