Talk:Extrajudicial detention

	NOTICE, please do not remove from top of page.
	While this article uses material that first appeared on the wikipedia, I was the author there too. Cheers!
	George Swan 17:52, 18 October 2007 (CDT)

Article coverage

Welcome, George. Please have a look at CZ:Article Mechanics--we would like to develop a (neutral, of course) narrative here, not just have a list of brief sections. This means CZ will have fewer sections and lengthier, "meatier" sections.

Your definition would seem to apply to ordinary prisoners of war, e.g., Al Qaeda militants captured and held in Iraq. Is that the intention? --Larry Sanger 18:38, 18 October 2007 (CDT)

Thanks for your note.

I was not an expert on the Geneva Conventions prior to the reading I did researching articles for another wiki. But I do know a lot about some sections of it now. It is recognized by the Bush Presidency that captives apprehended in Iraq are all entitled to the protections of POW status. With the exception of the (100?) or so "ghost prisoners" Rumsfeld authorized the US military to keep "off the books" I believe that none of the captives in American custody in Iraq should be considered to be in extrajudicial detention. In principle the Geneva Conventions and other national laws and international agreements authorize their detention.

The 772 captives who were held in Guantanamo, and a similar number who are held in detention in Bagram and Kandahar are held in extrajudicial detention. Their detention is not authorized by any law or treaty -- merely by President Bush's assertion they are "enemy combatants". The unknown number of captives who were held secretly in the CIA's "black sites" are also being held in extrajudicial detention.

• Ah. You probably meant Afghanistan not Iraq. Yes.The captives apprehended in Afghanistan, the couple of dozen apprehended in other parts of the world, like Bisher al Rawi, Jamil el-Banna and Saifullah Paracha. Yes. Those guys. Cheers! George Swan 11:16, 19 October 2007 (CDT)

I am going to take the liberty of starting a couple of mini-essays to respond to some of the other points in your note. I don't want to clutter up this talk page with material that is not strictly about this article.

Cheers! George Swan 09:33, 19 October 2007 (CDT)

Please do not start any political essays on this page. I will delete them if you do. My note's point was very simple, and does not require essays to respond to. --Larry Sanger 11:47, 19 October 2007 (CDT)

Article

Extrajudicial detention is the act of holding captives, by a state, without ever laying formal charges against them.

Detention without charge, sometimes in secret, has been one of the hallmarks of totalitarian states.

the writ of habeas corpus

In English speaking democracies, since the thirteenth Century signing of the English Magna Carta, persons detained or imprisoned without legal process were able to call upon the writ of habeas corpus — literally "you have the body". This was a legal challenge which could be made by an individual whereby the state was required to demonstrate to a court that there was a reasonable and legal justification for the detention of that individual.

Detention without charge by democratic countries

In recent decades some democratic countries have introduced limited mechanisms where individuals can be detained without being charged or convicted of a crime. See, for example, the Canadian Minister's Security Certificate.

The United States use of extrajudicial detention during the "war on terror"

During its "war on terror" the United States has made eavy use of extrajudicial detention.

Only eleven of the captives held in the Guantanamo Bay detention camps have faced charges before Guantanamo military commissions.

External links

• Pakistan's leaders must respect the rule of law, The Times, November 14, 2007. Retrieved on 2007-11-22.

• Heather Williams. Alberto Gonzales is a Criminal, Not a Speaker: Bringing the former Attorney General to campus would not contribute to any discussion, The Student Life, November 16, 2007. Retrieved on 2007-11-22.

• Nicholas Wood. Macedonia anxious about joining EU, International Herald Tribune, Tuesday, December 13, 2005. Retrieved on 2007-11-22.

• Alexandra Marks. How New York City fights terror now, Christian Science Monitor, September 11, 2006. Retrieved on 2007-11-22.

• Bikash Sangraula. Nepal's children forced to fight, Christian Science Monitor, June 28 2005. Retrieved on 2007-11-22.

• Christopher J. Le Mon. Letters to the editor, International Herald Tribune, December 5, 2003. Retrieved on 2007-11-22.

• Patrick Moore. The Serban Quagmire, Radio Free Europe, Thursday, 24 July 2003. Retrieved on 2007-11-22.

Further discussion

Please do edit the article so as to address my concerns before posting it back to the main page. This is, obviously, a politically incendiary topic. In the past, we have made it our practice to work on politically incendiary articles on talk pages before posting them. Thanks. --Larry Sanger 11:50, 19 October 2007 (CDT)

Well, it is incendiary only because it is current and poweful political interests are suppressing information and legal accountability. I don't think it is a problem to write an academically strong article on the topic. You might care to check out the latest scandal in the UK on alleged US extra-judicial sites on UK Overseas Territories rented out to the USA (for which arrangement, Blair ignored a High Court ruling allowing the natives of the islands to return after unlawful expulsion decades ago).

• http://jurist.law.pitt.edu/paperchase/2007/10/uk-lawmakers-investigating-allegations.php
• http://www.guardian.co.uk/usa/story/0,,2194649,00.html
• http://www.cbsnews.com/stories/2007/10/19/terror/main3386223.shtml

To a great extent, this sort of article should tie in with "political propaganda" and "censorship" -- two articles which need to be sorted out on CZ. These things were known to cognoscenti [including me] for some time, and continually denied by governments and agencies. --Martin Baldwin-Edwards

Just adding your signature, Martin.  ;-)

It is incendiary, of course, because many American conservatives disagree with the progressive position that something terribly wrong with the current U.S. policy of extrajudicial detentions. Some progressives use this issue as a bludgeon to bash the current administration, Republicans, and even the U.S. generally; naturally, the target of these criticism will defend the policy.

Obviously, Neutrality Policy requires that the article be written so as to explain the competing theories about extrajudicial detention all as sympathetically as possible. This means that either those conservatives and those progressives are made equally happy (if they accept that all sides must be sympathetically presented), or else equally enraged.

I'll be curious to see if you can actually achieve this lofty goal.  :-) --Larry Sanger 20:30, 19 October 2007 (CDT)

Well, given current and recent headlines in the U.S. and elsewhere, I doubt that we'll be able to write this article without angering more than a few people. So let's aim for "equally enraged." ;-)

In all seriousness though, let's work on developing these articles. If we want to call attention to CZ's higher level of professionalism, I can't think of a better method than to produce a really high quality approved article on a topic like extrajudicial detention.

Just yesterday I went to a talk by David Cole (the lawyer who represented Maher Arar). I should have asked him to submit a signed article... --Joe Quick 21:01, 19 October 2007 (CDT)

There is no problem to explain competing views, at all. People simply disagree about fundamental principles of democracy, law and human rights. Actually, this sort of article is wonderful as an illustration of western democracy in practice, in the sense that there is a massive gap between governments and electorates everywhere excpet the USA (where there is quite some support from conservatives). This has resulted in another massive gap between the USA and Europe, even though most European governments are complicit with the US administration in these activities. Overall result, a [temporary?] crisis in democracy in the developed world.--Martin Baldwin-Edwards 21:11, 19 October 2007 (CDT)

That too is your analysis, no doubt shared by many, but very far from all. Anyway, let's stop with the political statements, and get on with the writing, shall we? --Larry Sanger 09:54, 20 October 2007 (CDT)

I don't consider an analysis which is supported by all the objective evidence (such as public opinion polls) and takes no side in the debate, to be a political statement. This is valid, even if the analysis is incorrect. I think you should consider your own competence to see these things objectively, Larry. That people disagree about important things is normal, and we need to describe that state of affairs in a reasonable and detached fashion. In our previous disagreement about the reporting of Ahmedinajad's speech in NY, your reaction to the situation was far from neutral. There remain massive problems with the Neutrality Policy, and you pretend that they have been resolved. I agree with the principle of neutrality, and this is something we all have to work on. Including you, Larry.

For this article, I will make some contribution but not immediately, as I have too much research to finish by next week. I do not intend to write things here without serious research and evidence to back up everything, and this will take time. I will look in while taking breaks from my own writing and marking, over the next days.--Martin Baldwin-Edwards 11:48, 20 October 2007 (CDT)

Martin, a few points. First, the neutrality policy has been explicitly accepted by all Citizens. Consequently, if a Citizen were actually to believe that there are "massive problems" with it, I'm sorry to point this out, but he would in fact obligated to leave the project. Otherwise, his underwriting of it would be fraudulent. I'm quite serious about this: Martin, please don't think that you will be able to change the substance of the policy. I guarantee that you'll be disappointed. It's part of our fundamental principles. The only thing that might change, in the future, is its expression, for purposes of clarity. Second, in acting as editor-in-chief in these discussions, I mean only to state general principles about neutrality, which I believe I am competent to do; neutrality is something I have thought and written about a great deal about, and researched, for a long time.

You stated, "your reaction to the situation was far from neutral." First of all, I'm not aware of having expressed any reaction to the situation at all--only to how our neutrality policy was or wasn't being followed. Second, reactions are not the sorts of things which our policy concerns. One's emotional reactions can be as strongly politically motivated as one likes--I don't care about that--as long as one is willing to write sympathetically for your political opponents as well as oneself. Texts are neutral or not: that's what our policy concerns. In short, texts are neutral if they represent the range of positions sympathetically, and do not simply assert views that significant portions of the population, or significant minorities of experts, disagree with. Views that others disagree with--views the correctness of which we might (but should not) debate on a talk page--should be expressed sympathetically and attributed, but not simply asserted. That's what I'm concerned to enforce, as editor-in-chief.

Finally, let me say that I find your criticism of me disappointing, but permissible. There must be a special exception to CZ:Professionalism for myself and others in positions of authority.

Now, I find this latest exchange unpleasant, and I'd prefer to take it to e-mail--and, if you would like to lower the temperature here on the wiki, you may feel free to remove this exchange. For the reasons just stated, I wouldn't do so myself. --Larry Sanger 22:21, 26 October 2007 (CDT)

Hi all. Please do return to the subject of Extrajudicial detention on this talk page. Any comments or discussion of other policies can be carried to those particular talk pages. --Matt Innis (Talk) 22:48, 26 October 2007 (CDT)

Larry, I've been thinking about your comments. First let me assure you I agree with this and other articles being neutral. I think at least part of your concern is based on a misconception. It seems you think that there are two sides here -- on one side human rights advocates who describe the captives as being held in extrajudicial detention -- and another side who insists the captives are simply POWs, whose treatment has been completely in accord with how POWs should be treated.

If that is what you meant I think you are mistaken. It has been Bush policy since mid fall of 2001 that captives taken in the "war on terror" are not entitled to the protections of the Geneva Conventions.

Do the spokesmen of the Bush Presidency call the detention extrajudicial detention? No. But they don't present the detention as being authorized by the Geneva Conventions, and they don't present it as being authorized by the captives breaching any laws. The detention of the Guantanamo captives, the Bagram and Kandahar captives, and the captives in the CIA's network of black sites is only authorized by executive order. And the Bush Presidency has never argued otherwise. IANAL. If one of your subject area experts IS a lawyer, maybe you could have him or her review this discussion. As I understand it extrajudicial is not synonymous with illegal -- its literal meaning is outside the law.

So, sympathetically presenting the view that they are POWs, and have been treated as such isn't necessary or possible. That was never official policy.

I hope this sets at least some of your concerns aside.

Cheers! George Swan 01:06, 27 October 2007 (CDT)

I agree with this, George. It is a fundamental part of US and also UK policy to place government actions outside of the rule of law —for example, by locating camps in places like Guantanomo, but there are many other techniques. This is why the whole discussion is not simply a matter of opinion about law and/or policy, it is actually a fundamental issue concerning conceptions of democracy, of the power of the state. etc. Interpreting the CZ neutrality policy in this article should not be so difficult, whereas in an article about democracy or the role of the state it is much more difficult. --Martin Baldwin-Edwards 01:24, 27 October 2007 (CDT)

Added Military Workgroup; will add Law

Since the bulk of the George W. Bush Administration rationale for extrajudicial detention is justified under national security policy, the Military Workgroup seems quite relevant. Law should be obvious, as this is not simply a matter of politics. Howard C. Berkowitz 14:47, 1 November 2008 (UTC)

Begin at the beginning

What does the term actually mean? Start with etymology. Judicial is from judex, judge, so extrajudicial detention ought to mean detention not authorized by a judge, right? How about detention? Is arrest detention? If not, why not? If so, arrest without judicial warrant is extrajudicial detention.

Now what about the concept of arrest without charge, which the draft article above seems to think is synonymous with extrajudicial detention? Why should it be? On this side of the pond the police can hold someone only a few days without authorization from a judge, so after that it's not extrajudicial, right?

What does charge mean anyway? On this side of the pond there's been a lot of argument about this. Critics of the government say its period of pre-charge detention is the longest in any democracy. The government reply that continental legal systems haven't got anything exactly corresponding to our system of charging.

Habeas corpus, by the way, simply means anyone detained has the right to a judicial hearing to determine whether their detention is legal. It doesn't say what the law has to be on the subject. The law could say the government, or the police, can detain anyone they like for as long as they like for any reason, without affecting habeas corpus. And if someone applies for the writ & the judge rules the detention legal, then it's been validated by a judge & is therefore no longer extrajudicial, right?

My understanding is that "habeus corpus" translates literally as "have the body". It forces the authorities to either lay a charge or release the person in question. I do not know the finer points, and it no doubt varies between countries, and there may be exceptions under some laws, but I think that is the basic principle. Sandy Harris 13:50, 21 November 2008 (UTC)

That's the way it works because detention without charge is illegal, not because that's what habeas corpus "is". Peter Jackson 15:54, 21 November 2008 (UTC)

The literal meaning is as you say, with the clarification that the verb is in the subjunctive mood, not the indicative. It means you must bring the individual in person before the court for a hearing. Peter Jackson 15:56, 21 November 2008 (UTC)

If one is speaking of international law, or the laws of multiple countries, habeas corpus is specifically a concept from the English-derived common law. It is not a concept in the Roman-French derived civil law.

Ignoring countries that really don't concern themselves with legal codes, the only particularly relevant rules come from the Geneva Convention rules on reporting POW status to a Protecting Power, who, in turn, informs the government of the prisoners. If the prisoners aren't especially responsible to a national government, this breaks down very quickly. In like manner, universal jurisdiction treaties and customary international law for things such as piracy and slavery don't require reporting.

So, some scoping is very necessary. Extrajudicial detention may, indeed, be an inherently flawed title if you are talking in a broader context than U.S. law. Even habeas corpus varies in Common Law countries; Canadian courts generally allow a prisoner to be held, without formal charges, longer than in U.S. courts. Canadian and U.S. law enforcement, for more routine matters, tend to have a reverse view: Canadian law potentially allows more police power but custom tends to restrain it, but U.S. law, while stricter, is more often overridden.

U.S. precedent gets very complex when considering, as a start, ex parte Quirin vs Rahul v. Bush. Before getting into legal codes, can we agree what question the article, at the highest level, is trying to answer? Howard C. Berkowitz 16:47, 21 November 2008 (UTC)

That was just what I was asking. In terms of topical issues, I assume over there it's mainly Guantanamo, while here it's police detention of terrorist suspects for questioning. Peter Jackson 12:08, 22 November 2008 (UTC)

First, I am completely open to renaming this article, which won't hurt much given there's no content on the main page. Some existing links to this title would have to change.

Second, I'd be careful about topical issues in general at this level; I can think of quite a few other countries besides the U.K. and U.S. that are having problems related to detention. Topical issues are quite reasonable in a series of systematically linked, fully accessible, subarticles. POW handling, you observe correctly, does not, under the Geneva Conventions, require a judicial process. On the one hand, there is the argument that judicial determinations may, or may not, be needed to decide if someone is eligible to be a POW. On the other hand, there is not worldwide acceptance of all concepts of universal jurisdiction; examples include Pinochet and other issues raised by the International Criminal Court, summary or multinational authority over pirates in international waters, etc. Indeed, one topical issue is quite active in the waters off Somalia, where it appears that the UNSC, Somali government, several multinational organizations, and both formal (UNCLOS) and customary laws of the sea authorize the use of deadly force, not mere detention. Howard C. Berkowitz 13:04, 22 November 2008 (UTC)

My mention of topical issues was a response to the question of what the article is supposed to be about. That is, that's what most contributors are likely to be interested in. Peter Jackson 11:35, 24 November 2008 (UTC)

Can you accurately speak for the interest of "most" contributors? In any event, one issue that is being discussed is having CZ provide a way for readers to find subjects, other than by a search engine. Strict hierarchy, as in a paper encyclopedia, is a starting point, but an imperfect one. Given that there is not even agreement on the title or scope of the article, and there are no standard names for some of the topical issues, that's a real problem.

In some of the reviews of people trying to understand how to make CZ better, one of the themes is that a significant potential tool is a well-organized set of Related Articles pages, with extensive linking. Hypothetically, if one did not know a specific case or policy, such as a topical matter of an Israeli detention of a Palestinian, or a Russian detention of a Chechen, one might be able to find the topic by starting at a "law" or "military" page, or perhaps name of country, and work one's way down to a page that gets to the subject of interest. Setting up drafts of such Related Articles pages, even without having an associated full article, can be very helpful.

One way to judge what contributors will do is to see what gets written, but also listen to community feedback about whether the topics seem useful and objectively written. Certainly, the talk page is a place where needs for specific articles can be described; I and others certainly have started articles because there seemed a well-defined question on which I knew something of an answer. So far, respectfully, I've been hearing what you don't like, rather than even a question that could try to answer. Howard C. Berkowitz 15:32, 24 November 2008 (UTC)

All I'm suggesting is that people who want to write about such topics should carefully analyse what it is they want to talk about and then try to find a precise and accurate term for it. Maybe different things for different people. I've simply explained in detail why I think this title is unsuitable for anything people seem likely to want to write about. Peter Jackson 15:57, 24 November 2008 (UTC)

Prisoners of war are not normally held under judicial order & nobody seems to think there's anything wrong with that (except for holding them in Cuba, which for some reason people seem to think is totally wrong; this is a completely different issue from their treatment there, I hasten to add).

Conclusion. I see no useful concept representedby the title of this article. I suggest people try to think out & explain exactly what concept(s) they want to talk about & then try to find appropriate terminology. Peter Jackson 17:08, 20 November 2008 (UTC)

What is a judge anyway? In England we have magistrates (Justices of the Peace), who usually have no legal qualifications & never seem to be called judges, but exercise what most people would think of as judicial functions: they try people for minor crimes (without a jury) & can sentence them to 6 months. Are they judges? If not, that's extrajudicial detention. If they're judges, note the little-known (probably even to them) fact that all cabinet ministers are ex officio JPs. So if the Home Secretary orders someone detained is that still extrajudicial? Do we start considering which hat she's wearing?

The European Convention on Human Rights says that freedom from arbitrary detention doesn't apply to persons of unsound mind, alcoholics & drug addicts, & vagrants. In this country people are detained under the Mental Health Act by medical order, though there's an appeal to the courts. In Belgium, people can be imprisoned for 6 months by the police for being without visible means of support.

Now a positive suggestion. I think the concept of arbitrary detention is useful. That is, detention not governed by the rule of law, but simply at the whim of the authority. The rule of law, more fully, in the old, politically incorrect days, was the government of laws, not of men. That is, as far as reasonably practical, decisions should be made, not by politicians, bureaucrats or judges, but by reasonably well-defined rules publicly known in advance & equally applicable to everyone, generally observed & on the whole honestly & fairly enforced. This of course is somewhat fuzzy, but many cases are clear enough. Britain & America are on the whole governed by the rule of law, Russia, Zimbabwe & the international community aren't. Peter Jackson 11:12, 21 November 2008 (UTC)

Clarification of a subsidiary point above. Cabinet ministers are JPs ex officio in their capacity as Privy Councillors, not as ministers. Being a PC is a qualification for being a minister, not something they are ex officio as ministers. Peter Jackson 15:54, 21 November 2008 (UTC)

Naming

What is a better title for the subjects under discussion? I agree that the detention and treatment issues are separate, although related. The latter, especially, will relate to Military law and just war theory Howard C. Berkowitz 16:37, 24 November 2008 (UTC)

I'd say the existing title is fine. It is a phrase used in the press, so people might search for it. If we decide on another title, this should survive as a redirect. It does need a link to Military law or Prisoner of war, though. since those are separate issues. Sandy Harris 01:09, 25 November 2008 (UTC)

That's reasonable enough, Sandy. The introduction needs to make clear, however, that this is an issue involving many governments, many legal and judicial codes (or lack thereof), and many times and places. Nacht und nebel, "Night and fog", was a practice in the Third Reich, while I don't read Spanish, I understand that "Disappeared ones" or something along those lines were common in the "Dirty Wars" of Latin America. In the U.S., there have been cases where a suspected Soviet defector, Anatoliy Golytsin, was held for around three years, in harsh conditions, as part of a very complex spy-counterspy matter with factions pro-Golitsyn and other pro-Yuri Nosenko.

Topical things are fine, but there are enough issues here that it would be wrong to oversimplify this to Bush and Guantanamo. Howard C. Berkowitz 02:12, 25 November 2008 (UTC)

I think this title should be a quasi-disambiguation, explaining possible meanings people might imagine the term to have & referring readers to appropriate articles for them.

As a semi-aside, I sometimes wonder whether more important issues get missed. Over here, the limit for pre-charge detention in terrorism cases is 28 days. The government have twice tried to increase it, first to 90 days, rejected by the House of Commons, then to 42 days, rejected by the House of Lords. there's been an enormous amount of fuss about this, in the midst of which I heard a brief news report that someone who'd just been charged with terrorist offences would have to wait 18 months for trial. Makes me wonder. In Scotland there's a limit of 110 days on pre-trial detention, though there may be exceptions. Peter Jackson 11:28, 25 November 2008 (UTC)

We may be talking about much the same function when you say quasi-disambiguation and I say high-level article with subarticles. "Disambiguation" has a quite specific CZ meaning, so I recommend we avoid the term to avoid creating ambiguity.

Let's assume, following Sandy's suggestion, we retain extrajudicial detention because no one has come up with a better, more general nake. The introductory text reasonably can have words about it covering a wide range of situations in which states or quasi-states (why should hostage taking be excluded?) involuntarily detain individuals in violation of some arguably relevant legal code.

In U.S. terms, formally arresting someone and putting them into a pre-trial process is not extrajudicial. There is a system of "material witness" detention of people not charged with a crime, but that is clearly judicial.

Capturing someone even in an unusual data, but treating them as a prisoner of war and applying the relevant Geneva conventions is not "judicial", but it's sufficiently well recognized in customary international law that it's fairly clearly not extrajudicial detention, but properly links to prisoner of war. The conventions for piracy and slavery fall into this area. More difficult is the question of universal jurisdiction under the International Criminal Court, and various quasi-judicial processes whose legal basis was irregular, ranging from the International Military Tribunals in Nuremberg and Tokyo, the subsequent [[Nuremberg Military Tribunal]s, and things like the abduction followed by trial of Adolf Eichmann. The arrest and trial of Pinochet is another gray area that did involve at least some judicial process.

Things get more difficult, although not completely outside the Geneva conventions, when there is question if someone is entitled to POW status. If a reasonably prompt "competent tribunal" is held, as specified by the Geneva Conventions, is held, quite possibly with international observation, and an individual is determined not to have POW rights, the question becomes what do do with him. In some cases, international law does allow execution, or perhaps detention for the period of a somewhat well defined war, but this is an increasingly difficult area. In U.S. law, ex parte Quirin does cover secret arrest and execution of hostile nationals during a clear war; the British Double-Cross system also had judicial aspects.

The problems come not even if the taking into custody is secret, but when the detention is indefinite, secret, and unmonitored by neutral parties.

Are those a fair statement of principles before getting into specifics of detention under particular governments and national convention, of what seems to be the focus, "international terrorism"? Do non-terrorist intelligence-related matters, while rare, such as Golitsyn fit here?

I'd really like to move away from indefinite discussion of unhappiness with various issues and drafts, and try to restart a basic article. Whether it's called quasi-disambiguation or something else, however, I'm convinced that leaping straight into the Bush Administration and Guantanamo is neither encyclopedic nor giving the impression of neutrality. Some of the U.S. policies may well change in a few months; look, for example, in the article in process on James Jones, the presumptive new U.S. Assistant to the President for National Security Affairs and his prior personal but public positions about Guantanamo. Howard C. Berkowitz 12:45, 25 November 2008 (UTC)