Peter Margulies Critiques Detention and Denial

By Benjamin Wittes
Thursday, January 20, 2011, 12:25 PM

I received the following email today from Peter Margulies, author of Law’s Detour: Justice Displaced in the Bush Administration, following his reading of Detention and Denial: The Case for Candor After Guantanamo:

Detention and Denial is a notably serious book that stands out from the glib sloganeering on the right and left.  I wish, however, that you had been more nuanced in your treatment of both Europe and the international community.  The book portrays Europe, in particular, as a free rider on the detention capabilities of the United States.  This view is not without foundation; however, a richer explanation would acknowledge the vigorous counterterrorism measures enacted by Europe and the international community, including some measures that the United States Constitution would prohibit.  That more detailed understanding in turn permits a sharper focus on the impractical approach to terrorism manifested in certain cases by European institutions, such as the European Court of Human Rights (ECHR).

Essential to that task is recognition that both Europe and the international community are a “them,” not an “it.”  Many entities and institutions figure in these constructs, in ways that resist pigeonholing.  For example, after September 11, the international community enacted robust counterterrorism measures such as Security Council Resolution 1373, which requires states “to prohibit anyone within their personal or territorial jurisdiction from making any funds, resources or financial services available to persons who commit terrorist acts or to entities controlled by them.”  This measure is a vital complement to the United States material support statute, upheld by the Supreme Court in Humanitarian Law Project v. Reno, which bars funding or other resources for international terrorist groups. 

European countries have also assisted the United States in counterterrorism operations, sometimes engaging in actions that our government could not perform at home.  Italian authorities allegedly cooperated with the CIA in seizing a suspected terrorist and sending him to another country for interrogation.  Eastern European countries apparently furnished “black sites,” which Detention and Denial rightly criticizes, for interrogation.  Britain continues to use house arrest as a counterterrorism measure, despite a vow by the new government to end the practice.

Moreover, long-standing European practice permits criminal prosecution of terrorists and their sympathizers for incitement to violence, in contexts where the First Amendment would preclude prosecution here.  For example, in Zana v. Turkey, App. No. 69/1996 (Eur. Ct. H.R. Nov. 25, 1997), the ECHR upheld the conviction of a public official who, after attacks on civilians by the Kurdistan Workers Party (PKK), viewed by Turkey and many other countries (including the US) as a terrorist group, described the PKK as a “national liberation movement.”  The ECHR based its ruling on Article 10 of the European Convention on Human Rights, which limits free expression in the interests of national security and public safety.  Our modern First Amendment doctrine, announced first in Brandenburg v. Ohio, would bar such a prosecution based on the content of speech (a view unaffected by the Supreme Court’s recent decision in Humanitarian Law Project v. Holder upholding a federal law barring “material support” to terrorist groups, in which the Court expressly exempted independent advocacy from the statute’s scope).  Since Europe makes criminal prosecution of terrorists so easy, perhaps it has less need for the detention regime that Detention and Denial recommends. 

That said, the ECHR has elsewhere impeded implementation of a rational detention policy.  In A and Others v. United Kingdom, App. No. 3455/05 (Eur. Ct. H.R. Feb. 19, 2009), the ECHR struck down detention of a suspected terrorist as a disproportionate derogation from Article 15 of the European Convention on Human Rights, which bars arbitrary detention.  The A and others court unwisely rejected an alternative route: reading UN SC Res 1373 to broaden the ambit of proportionate state responses to terrorism.  Since concerns about torture prevented the detainees’ return to their country of origin, the only remaining outcome, in the absence of grounds for  criminal prosecution, was the worst case scenario identified in Detention and Denial: release despite strong evidence of dangerousness.  The A and others decision makes drone attacks at the source of terrorist recruiting an attractive “Plan B,” reinforcing Detention and Denial’s dim view of at least some European institutions, some of the time.  The remedy for this problem with European institutions, however, is not a blanket critique of the continent across the Atlantic, but a nuanced approach that recognizes Europe’s distinctive legal culture and expands our common ground.

Peter's points about Europe are well-taken. But I never meant to suggest that all of European counterterrorism policy was free-riding off of American counter-terrorism policy. My book deals with detention policy alone, not with counterterrorism policy more broadly. And I meant to suggest only that Europe can afford to adopt of a no-detention posture only because European countries know that the United States will do their detentions for them--a point Peter agrees is "not without foundation." This point is, to be sure, connected with a broader European tendency to free-ride on the American security umbrella, but I agree with Peter that not all of counter-terrorism policy across the Atlantic reflects that tendency. I certainly did not mean to suggest otherwise.