The New York Times The New York Times Week In Review August 11, 2002  

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In the Secret-Detentions Club



THE use of detention within the United States may be the most problematic tool in the Bush administration's arsenal in the global war on terrorism. It has alarmed American civil rights groups, and foreign critics have used the issue to turn a lot of initial sympathy for the United States into a new wave of anti-Americanism, while it has given China and Russia reason to call their far more egregious human rights violations antiterrorism.


Detention is not new in the United States. There was the roundup of Japanese-Americans during World War II and the wholesale detention of Haitian boat people and a significant number of Cubans in the 1980's and early 1990's. What is new is that the detentions are shrouded in secrecy: for the first time, the United States � like countries whose human rights policies it has long criticized � is withholding the names of detainees. A federal judge ordered the Bush administration to release the names by Aug. 17, but it filed a stay on Aug. 8 to challenge the ruling, arguing among other things that the White House does not want to give Al Qaeda a road map to the investigation by letting it know who has been interrogated.

"The detentions of Haitian asylum seekers weren't secret," said Elisa Massimino, director of the Washington office of the Lawyers' Committee for Human Rights. "We were never denied the names; they were permitted access to counsel. It's really a qualitative difference with what's being done now."

She said that secret detention is a policy that "kind of seeps into the system and becomes part of the landscape forever," adding that there is concern in the human rights lobby that the detention section in new antiterrorism legislation is the only one with implied permanence. "That stuff is here to stay and it will take an act of Congress to get rid of it now," she said.

"If there is another attack, God forbid, we're going to see a whole new round of measures, and they will be far more extreme than what we've seen," she said. "If we want to see where this kind of thing is heading, then we can look to China, and we can look to Egypt and we can look to what Turkey was doing with the Kurds. That's our future, unless we can lay down some markers now about what would be too much."

No mainstream critic of the Bush administration's antiterrorism policies suggests that Americans are physically abusing detainees, and detention in the United States, however harrowing for detainees and families, is a different experience from what happens in countries where there are few if any strong watchdog groups to monitor treatment and living conditions and to press for the widest application of civil rights standards.

In India over the 1990's, thousands of Kashmiris were detained, and the latest State Department human rights report says that hundreds of them were probably tortured or killed in detention. The Bar Association of Kashmir, part of an alliance of unarmed moderate separatists, estimates that as many as 5,000 Kashmiris may have "disappeared" in little more than a decade.

More recently in the Caucasus, Arthur C. Helton at the Council on Foreign Relations in New York said, "Russian soldiers in Chechnya pick up Chechen men all the time and send them to `filtration centers,' where they are treated harshly, and some of them disappear; but the Chechens also capture or kidnap Russians or other Chechens or foreigners."

Detention � the deprivation of a person's right to freedom of movement, especially if no trial is impending or any charges are likely � is nearly universal, though it can take many forms.

What alarms many human rights advocates is how quickly governments resort to rounding up detainees in moments of crisis � or panic � and how, in places where due process of law is weak or nonexistent, a detainee one day may be a torture victim the next, or may "disappear" altogether.

DEMOCRACIES are no exception to the use of detention, even though prolonged detention without demonstrable cause violates international human rights law, Mr. Helton and others said. During "the troubles" in Northern Ireland in the 1970's and 1980's, the British detained hundreds of Catholic and Protestant paramilitaries, held them for varying periods and then convicted them in trials without juries.

Furthermore, said Mr. Helton, author of "The Price of Indifference: Refugees and Humanitarian Action in the New Century" (Oxford, 2002), across Europe, as well as in the United States, in Africa, Asia and most recently Australia, "detention is being used increasingly as a migration-control strategy." The reason he said, is that people who are not citizens and arrive uninvited are determined to have fewer rights.

Some governments try to detain whole classes of people, as in China, where the Falun Gong cult has been one of the most recent targets. Other governments carry out what they call "preventive detentions," rounding up potential troublemakers before they can act. But detaining people isn't limited to governments. In the Balkans, Serbs rounded up Muslims and Muslims held Serbs, though in smaller numbers � detentions that often led to abuse or death.

Ruth Wedgwood, a professor of international law at the Yale Law School and the School of Advanced International Studies at Johns Hopkins, said that some of the strongest criticism of detentions, especially secret ones, grows out of a traditional American commitment to transparent government and a belief that openness must be preserved no matter what the cost or circumstances. In international conventions governing detention, she said, considerable leeway is actually given to governments.

"The international human rights conventions are not always so liberal as the American Constitution," she said. "Every statement of a right is accompanied by the statement that the right is subject to the limitations of public order, public health." But, she added, "detention must be proportionate and strictly necessary."

Governments may limit rights in a national emergency if the emergency is reported to the authority in charge of upholding the convention. This could be the United Nations if it is an international agreement or the Council of Europe, or other regional body if the covenant is regional. "Freedom of locomotion, as much as we cherish it, is not one of the super-entrenched rights in international covenants," she said.

"All they really hold sacrosanct is the physical integrity of the body: no torture, no unlawful killing, no disappearances."

Nevertheless, said Felice Gaer, chairwoman of the United States Commission on International Religious Freedom and a member of the United Nations committee on torture, there have to be better standards for how detention is employed: "Why is a person detained? Is it under the rule of law, or is it arbitrary? Is there access to a lawyer, doctor, family member? Is there access to a functioning legal system?"

She said that a record of each case should be kept, that inspections should be permitted and that any complaint of ill treatment should be examined. "When you start to break down these pieces and go into secrecy, that creates the uncertainty in which ill treatment can take place," she said. "That's what we're on the watch for."

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Associated Press
Police detain a Falun Gong protester in Tiananmen Square on China's National Day in 2000. Today, countries like China have an anti-terrorism card to play.


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Associated Press
At Manzanar, where Japanese-Americans were held during World War II, the names of detainees were not kept secret, as the names of Muslims detained today are.

Associated Press
Haitian refugees in 1992, held at the United States Naval Base at Guantanamo Bay, Cuba. None of the Muslims detained today are holding up ID cards.

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