Immigration and Terrorism - Schoenholtz and Goodman

Institute for the Study of International Migration, Walsh School of Foreign Service, Georgetown University

Transatlantic Perspectives on Migration Policy Brief #7

February 2009

THE IMMIGRATION CONTROL OF TERRORISM AND THE PREVENTION OF TORTURE Andrew I. Schoenholtz* Jacob L. Goodman**

* Andrew I. Schoenholtz is the Deputy Director of Georgetown University’s Institute for the Study of International Migration and a professor at Georgetown University Law Center. ** Jacob L. Goodman is a Research Assistant and J.D. candidate at Georgetown University Law Center.

The publication of Transatlantic Perspectives on Migration is made possible by a grant from the German Marshall Fund of the United States

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States on both sides of the Atlantic have struggled with the question of what to do under their immigration laws with non-citizens who pose security threats, but who the state cannot deport without violating the Convention against Torture (CAT) or other binding human rights law.

The prohibition against torture is one of the few peremptory norms found in international law, alongside the prohibitions against genocide and slavery. The Torture Convention, accordingly, allowed for no exception to the prohibition against returning a non-citizen to a country where there are substantial grounds for believing that the individual would be in danger of being subject to torture.

U.S. and European policy makers and adjudicators continue to search for an approach that assures their own country’s security while adhering to the core political, social, and legal principles associated with the prohibition against torture. Policy choices have varied, and the international community has yet to reach consensus on the most effective and appropriate option. This paper examines the state of the law and policy on both sides of the Atlantic, with particular attention to the United States, Britain, and Germany. In doing so, it examines three possible options: (1) indefinite detention; (2) return with diplomatic assurances; and (3) supervised release. Having evaluated the strengths and weaknesses of each, policy recommendations follow.

Indefinite Detention When states arrest non-citizens believed to be terrorists, criminal prosecution may ensue. If it does not, states may try to detain such perceived security threats for as long as possible—in other words, indefinitely. Does the law permit states to do so?

UK Law and Policy Indefinite Detention and the European Convention on Human Rights Since 9/11, the trend has been for the United Kingdom to seek more expansive detention powers, including in some circumstances the power to detain without charge, but the courts have seriously resisted such assertions of authority. The government’s power to detain noncitizen (and citizen) terrorist suspects has been the subject of intense national debate, and today it is clear that indefinite detention is not legal in the UK. Prior to 9/11, the UK passed the comparatively modest Terrorism Act 2000, which provided for detention without charge of up to 7 days for terrorist suspects (citizens and non-citizens alike), with the possibility of a “warrant of further detention” issued by a judicial authority. Following the attacks of September 11th, the government passed the much more aggressive Anti-Terrorism,

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Crime and Security Act 2001 (ATSCA), which allowed for the indefinite detention of non-citizen terrorists. The controversial act gave the UK Home Secretary discretion to certify an individual as a terrorist based on secret evidence, with appeal limited to the newly established Special Immigration Appeals Commission (SIAC).

The government was forced to amend the ATSCA, however, when the House of Lords ruled that indefinite detention violated the European Convention on Human Rights (ECHR). In the 2004 Belmarsh Case, the House of Lords found that the ATSCA impermissibly discriminated on the basis of nationality. In addition, the Court held that the government improperly derogated from the liberty guarantees of Article 5 of the Convention. It reasoned that a proper derogation required (1) that there be a public emergency threatening the life of the nation; and (2) that the derogation be strictly required by the exigencies of the situation. The court found that while the attacks of September 11th did threaten the life of the British nation, a political determination to which the judiciary should give “great weight,” the derogation was not strictly required by the exigencies of the situation. The derogation failed a test of “strict necessity” or “proportionality.”

In striking down the Act, the Court did accept that the legislative end, preventing a devastating terrorist attack against the United Kingdom, was sufficiently important to justify limiting the fundamental right of personal freedom under Article 5 of the ECHR. But it reasoned that the ATSCA was not “rationally connected” to that end because it ignored the clear threat presented

by British nationals. The Court also found irrational that the act allowed foreign nationals who did pose a security risk to the UK to be deported if there were a country that would take them in without risk of mistreatment, when they might very well plan and execute a terrorist attack against the UK from abroad. Most importantly for the arc of British policy, the Court noted that a policy of intensive supervised release would be a less restrictive and equally effective means of achieving the legislative objective.

The government responded by passing the Prevention of Terrorism Act 2005. Taking its cues from the Belmarsh Case, the legislation repealed the indefinite detention without trial power, along with the distinction between citizens and non-citizens, and replaced it with a system of “control orders” which allow for supervised release. Upon a “reasonable suspicion” of involvement in terrorism-related activity, citizens and non-citizens alike may be subject to house arrest including curfews, electronic tagging and monitoring, timely reporting requirements, restrictions on communication, and other measures. The legislation allows for both “non-derogating” and derogating control orders, that is, orders that merely restrict liberty, and those that amount to a deprivation of liberty within the meaning of Article 5 of the ECHR.1 Having been clearly rebuked by the courts, the government has moved away from a policy of indefinite detention and pursued two other policies: return with diplomatic assurances for non-citizens posing a security threat to the UK, and supervised release.

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U.S. Law and Policy Statutory Authority for Indefinite Detention of Certain Non-Citizens While the U.S. has aggressively pursued the deportation of security risks since 9/11,2 it has also pursued the legal framework to detain non-citizen security risks indefinitely if needed. The USA PATRIOT Act, passed shortly after September 11th, amended the Immigration and Nationality Act to allow for the mandatory detention of non-citizen terrorist suspects certified by the Attorney General.3 The amendments allow the Secretary to certify an individual as a terrorist suspect and detain that person where he has reasonable grounds to believe that the non-citizen is engaged in any activity that endangers the national security of the United States.4 A certified individual must be either placed in removal proceedings or charged criminally.

It is under these circumstances that the PATRIOT Act provides congressional authorization for the indefinite detention of certain non-citizens. The Act provides that where the government has been unable to remove the non-citizen within 90 days, where removal is unlikely in the “reasonably foreseeable future,” and where release “will threaten the national security of the United States or the safety of the community or any person,” the individual may be detained for additional periods of up to six months.”5 Given that certified individuals have already been determined by the Secretary to be a danger to the national security of the United States, they would surely meet the much lower standard of threatening “the safety of the community or any person.”

Though certification must be reviewed every 6 months6, the Secretary is given sole discretion to decide if the certification should be revoked and, if so, on what conditions the non-citizen should be released. The Secretary, then, is authorized by Congress to detain certain individuals indefinitely.

U.S. Policy on Indefinite Detention within U.S. Borders in Practice and the Constitutional Question Though the statutory framework for indefinite detention of terrorist suspects is in place, the government has not yet tested its authority to detain indefinitely, and is not pursuing a policy of indefinite detention.7 The Executive has yet to invoke its powers under the PATRIOT Act to certify an individual as a terrorist suspect,8 and, thus, has not been in a position to detain a certified individual indefinitely. As a result, there has been no opportunity to test the constitutionality of this provision.

The Supreme Court has ruled on the indefinite detention of non-citizens in other situations, however. In two cases, Zadvydas v. Davis and Clark v. Martinez, the Court narrowly construed a statute, the Immigration and Nationality Act (INA), to avoid ruling on the constitutionality of

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indefinite detention. In Zadvydas, the Court found that “[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem.”9 Rather than rule on the question, the Court found that nothing in the history of the statute clearly demonstrated congressional intent to authorize indefinite detention, and ruled that Congress had limited the discretion to detain to a reasonable period of time necessary to effect deportation. Any detention longer than 6months, said the Court, was presumptively unreasonable, and would require the government to show that removal was “reasonably foreseeable.” In Martinez, the Court used similar reasoning to extend the 6-month presumptive detention period described in Zadvydas to non-citizens seeking admission, making the indefinite detention of those admitted and seeking admission presumptively unreasonable under the INA. The Martinez opinion made clear, however, that its decision (and the decision in Zadvydas) was a matter of statutory interpretation, not constitutional interpretation. Responding to the government’s argument that “the security of our borders will be compromised if it must release into the country inadmissible aliens who cannot be removed,” the Court noted that these decisions concerned the interpretation of particular statutory language, and that Congress could pass a new statute to address the problem if it so desired. Indeed, the majority explicitly referenced Section 412 of the Patriot Act, writing that “[l]ess than four months after the release of our opinion [in Zadvydas], Congress enacted a statute which expressly authorized continued detention, for a period of six months beyond the removal period (and renewable indefinitely).”10 In fact, the Zadvydas opinion specifically notes that the Court is not addressing indefinite detention in the context of “terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security.”11 Had the plaintiff been detained indefinitely under Section 412 of the Patriot Act, which clearly authorized indefinite detention, the Court would have had to address the limits of the government’s powers to detain non-citizens indefinitely under the constitution. But in no case has the court been required to do so.

Though indefinite detention of terrorist suspects in some circumstances is Congressionally authorized, then, it is an open question as to whether it would pass constitutional muster. The Supreme Court has not yet ruled on the constitutionality of indefinite detention of non-citizens who pose security threats. In fact, concerns about the provision’s constitutionality may explain the Executive’s reluctance to invoke its statutory authority to detain individuals indefinitely.

The state of U.S. law with respect to indefinite detention, then, is unknown. What can be gleaned from U.S. judicial decisions is that indefinite detention would produce a significant and complicated constitutional question. How that question would be resolved is unclear.

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German Law and Policy There is no German law providing for indefinite detention, nor are non-citizens detained indefinitely in practice. There is no special provision for detaining a non-citizen on suspicion of terrorism. The state may detain in order to execute a deportation or under penal provisions based on criminal convictions.

All three states discussed above, then, have dealt with suspected terrorists differently in terms of indefinite detention. The United Kingdom tried to use their laws to detain such suspects indefinitely, but repealed the indefinite detention without trial powers after the House of Lords ruled that such laws violated the European Convention on Human Rights. The United States still has such powers through legislation, but has chosen not to use those powers and test their constitutionality. Germany never put such powers in place. All three states, however, have turned to diplomatic assurances to address perceived security risks posed by non-citizens.

Diplomatic Assurances and the Removal of Terrorist Threats As a mechanism to manage terrorist threats or supporters, diplomatic assurances are a recent phenomenon. These agreements between states set conditions for the treatment of a person transferred from one state to another.12 They may require that the receiving state provide a fair trial, refrain from using the death penalty, or—of concern in the deportation context—refrain from the use of torture or other degrading treatment.13 Reliance on diplomatic assurances has been a longstanding practice in extradition relations between states. According to UNHCR, however, states are increasingly resorting to assurances of compliance with the Torture Convention in connection with non-citizens expelled or deported following removal procedures.14 The Convention provides that “No State Party shall expel, return (“refouler”), or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”15 Some states argue that obtaining diplomatic assurances from a state that an individual will not be tortured is one method of complying with CAT. However, human rights advocates, among others, have raised serious concerns that these assurances do not succeed in preventing torture.16 If diplomatic assurances do not remove the “substantial grounds” that torture would occur, the transfer would violate CAT. Diplomatic assurances are not treaties, nor are they legally binding.17 If torture occurs, neither the transferring state nor the abused person has a way to hold the torturing government legally accountable.18

UK Law and Policy Diplomatic Assurances and the European Court of Human Rights The United Kingdom’s Security Service, MI5, states that when prosecution of a perceived security threat is not possible, they seek other security measures, including deportation, in

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order to disrupt terrorist activity.19 Deportation is seen as a tool to remove the immediate threat of attack. This reliance on deportation presents challenges where the perceived security threat faces a real risk of torture. Partly in response to this challenge, the United Kingdom has turned to the use of diplomatic assurances. MI5 has stated that it is “negotiating agreements with some countries to ensure that, where someone is deported, we can obtain specific assurances, backed up by independent monitoring, to enable us to satisfy ourselves that removal is consistent with our obligations under the European Convention on Human Rights (ECHR).”20 The UK has concluded Memoranda of Understanding with three countries (Jordan, Libya and Lebanon) to facilitate deportation of terrorist suspects in a manner consistent with our obligations under the ECHR. Monitoring bodies have been appointed in Jordan and Libya; agreement in principle has been reached with a monitoring body in Lebanon. Negotiations are ongoing with a number of other countries in North Africa and the Middle East. Separate arrangements are in place for deportations to Algeria.

But MI5’s policy of deporting security risks through the use of diplomatic assurances has been hampered by the European Court of Human Rights (ECtHR), the single most active judicial body on this issue. Overwhelmingly, the Court has overturned or preempted removals based on such assurances from governments known to participate in torture.

Most of the jurisprudence in this area is based on Chahal v. United Kingdom.21 There the Government put forward an oft-used rationale for trusting diplomatic assurances from otherwise suspect governments, referred to as the “all eyes are watching” defense. The UK government claimed that Mr. Chahal’s high profile following the deportation trials in England, coupled with the likelihood of public outcry if torture was later discovered, would be enough to make India’s assurances believable. The ECtHR rejected this claim and found that transferring Chahal would violate the UK’s obligation to not return a person to a place where there was a real risk of torture.22 Even with assurances, the Court reasoned that the risk of torture was significant, stating that “despite recent improvement in the human rights situation in Punjab and efforts of Indian authorities to bring about reform, problems persist with regard to observance of human rights by certain members of security forces in Punjab and elsewhere in India.”23 Chahal is still considered the leading case in Europe, and the ECtHR has used it to prevent deportations when diplomatic assurances have been given. The two most recent cases follow this trend. In the first six months of 2008, the ECtHR declared that two planned deportations, one by Russia to Uzbekistan24 and one by Italy to Tunisia,25 would violate Article 3 of the ECHR if enforced. In the second case, Saadi v. Italy, the Grand Chamber awarded Mr. Saadi 8000 Euros for non-pecuniary damages he sustained in the course of his dramatic capture and drawn-out trial.26

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The Saadi case is particularly noteworthy because of its implications for the war on terror.

Although the Court acknowledged the serious problems raised by terrorism, it rejected the argument put forward by the United Kingdom, a third party intervener in the case, that in cases involving suspected terrorists the court ought to weigh the likelihood of torture against the societal value of the expulsion to the sending state.27 With regard to diplomatic assurances, the Court accepted that such guarantees might be sufficient to satisfy a state’s Article 3 obligations in some cases, but the vaguely-worded and unspecific assurances in this case28 were not strong enough, given the evidence of widespread torture and ill-treatment in Tunisian detention facilities.29 There are very few instances in which the ECtHR has allowed a deportation or extradition on the basis of diplomatic assurances. Furthermore, each of these cases involved, rather than an affirmation of the practice, an insufficiency of information that made a finding of a “real risk” of torture impossible.30 In all such cases that have come before the ECtHR with insufficient evidence to establish an Article 3 violation, the Court has chosen to censure the state by finding a procedural violation. As Human Rights Watch emphasizes, “there has been no case in which a state has extradited or otherwise transferred a person based on, inter alia, diplomatic assurances against torture and ill-treatment where the [ECtHR] has ruled that the transfer was in full compliance with the Convention.”31 Successful challenges to deportations based on diplomatic assurances have also recently been raised in European domestic courts. Most notably, in April 2008 the British Court of Appeal overturned a decision by the Special Asylum and Immigration Court (SAIC) to deport Omar Othman (also know as Abu Qatada) to Jordan, despite the existence of a Memorandum of Understanding between the two countries that anyone deported from the U.K. would be treated humanely and given a fair trial. The decision extended beyond the facts of the case to pronounce that a fair trial was impossible in Jordan as long as the Jordanian General Intelligence Department (GID) used torture to extract evidence for trial. The reliability of the Memorandum was not explicitly addressed, but the ruling essentially disallowed deportations in reliance on the Memorandum until the facts on the ground become dramatically different. A year earlier, the Court of Appeal reached a similar conclusion in the attempted deportation of two Libyans in reliance on promises by Libyan leader General Muammar al-Qadhafi. The Court upheld a SAIC decision that General Qadhafi’s promises not to torture alleged members of the Libyan Islamic Fighting Group (LIFG), an armed opposition group who pledge to overthrow him, were not reliable.32 Though the U.K. has been one of the most outspoken proponents of deportations with diplomatic assurances as a way to combat domestic terrorism, these recent court cases make it a less

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appealing option. That being said, all cases involving diplomatic assurances have limited holdings stating only that the specific assurances were insufficiently reliable to defeat the non-citizens’ showing that torture was likely, and no British court has claimed that diplomatic assurances are categorically barred by Article 3 of CAT.33

German Law and Policy Germany’s first modern immigration law, the Aliens Act of 1990, included protection against expulsion for those non-citizens at risk of gross human rights violations if removed. In this context, the German government has tried to deport certain non-citizens through the use of diplomatic assurances, and German courts have addressed this practice.

In the case of Metin Kaplan, a German court considered diplomatic assurances from Turkey sufficiently reliable to deport the radical Muslim cleric. A German regional court had stayed the deportation in 2003 based on human rights concerns, including the insufficiency of diplomatic assurances against torture and unfair trial from Turkey. Expressing concern about the independence of the Turkish State Security Court in which Mr. Kaplan would be tried if extradited, the Court stated that: “…Such formal guarantees in an extradition proceeding can only provide sufficient protection in favor of the persecuted person if their correct implementation through the institutions of the requesting state—in this case the independent Turkish judiciary—can reliably be expected. The latter is not the case here.”34 The German government, however, called the decision not to extradite Kaplan “regrettable” and pointed to “the repeated expressly confirmed promises of the Turkish government regarding the adherence to principles of the rule of law.”35 Minister of Interior Otto Schily traveled to Ankara and sought further assurances, which he touted as adequately guaranteeing Mr. Kaplan’s fair treatment and safety from torture. The government also publicized its position that the right of a state to protect national security by expelling a foreigner should have priority over the possibility of removal to torture, 36 though this legal priority-setting was never confirmed by a court.

Mr. Kaplan lost a series of subsequent legal challenges to his deportation in 2004, and he was eventually extradited in October 2004. His case was dismissed by the Bundesverwaltungsgerich, the highest court to which Mr. Kaplan could appeal; that court emphasized Turkey’s obligations as an ECHR signatory and the responsibility of the ECtHR, rather than Germany, for dealing with violations of the Convention.37 Upon his return to Turkey, Mr. Kaplan was sentenced to life in prison for plotting to overthrow Turkey’s secular system. That verdict was overturned in

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November 2005 by a Turkish Appeals Court, which cited procedural deficiencies and inadequate investigation, and appeals continue to this day.38 The Kaplan case was never brought before the ECtHR. However, in a similar and more recent case involving a deportation from Germany to Turkey, German Courts prevented the deportation of Hasan Atmaca based on diplomatic assurances.

Previously, the ECtHR had indicated to the German government that Mr. Atmaca should not be extradited to Turkey. Then in May 2006, the German government sought and received diplomatic assurances from Turkey that Mr. Atmaca would be detained in a high security prison meeting international standards and that German authorities could visit him. His extradition based on these assurances was then challenged and upheld in the Frankfurt Higher Regional Court.

However, on May 31, 2007, the Darmstadt Administrative Court instructed the German Federal Office for Migration and Refugees to declare Mr. Atmaca a refugee and stated that he could not be deported to Turkey, as this might constitute refoulement despite the assurances received.39

Canadian Law and Policy The leading Canadian diplomatic assurance case is Suresh v. Canada (Minister of Citizenship and Immigration), in which an order for Mr. Suresh’s deportation to his native Sri Lanka was declared unconstitutional.40 The Minister had based the deportation order on assurances from Sri Lanka, which the executive branch considered to be reliable. However, the Supreme Court of Canada stated that assurances against torture, which is illegal and often conducted with the collusion of government or as a result of government impotence, are fundamentally different, harder to monitor, and less reliable than assurances relating to the legal processes of prosecution, conviction, and sentencing.41 The Court held that fundamental justice requires a fair process for an individual who is subject to deportation to torture. That process must provide the individual with the information being used to deport him with assurances and with an opportunity to challenge that information.42 The opinion also included what has become known as the “Suresh Exception” to the ban on deportation to torture when the reasons for the deportation are especially strong, as with suspected terrorists. The Court wrote “[w]e do not exclude the possibility that in exceptional circumstances, deportation to torture might be justified...”43 The Suresh Exception has never been used to justify a transfer to likely torture, which would clearly violate the Torture Convention, as the ECtHR’s Saadi decision demonstrates. Referring to this theoretical exception to the torture ban, the human rights organization REDRESS commented that “The Canadian [Suresh] decision represents a deviation from international standards that is unsupported by international law.”44

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U.S. Law and Policy American law on diplomatic assurances is unclear. Both CAT and the American implementing legislation, FARRA, are silent on the subject of diplomatic assurances in relation to the likelihood that a non-citizen would be exposed to torture. U.S. regulations regarding the use of diplomatic assurances allow the Secretary of State to obtain assurances from a receiving country. The assurances are forwarded to the Secretary of Homeland Security who determines whether they are sufficiently reliable to allow removal consistent with CAT. Once they are deemed reliable, “the alien’s claim for protection under the Convention Against Torture shall not be considered further by an immigration judge, the Board of Immigration Appeals, or an asylum officer.”45 The common test for determining relief under CAT in the U.S. is whether the applicant is “more likely than not” to be tortured.46 The language of U.S. regulations seems to assume that reliable assurances remove any likelihood of torture after removal.

U.S. courts have provided very little interpretation or guidance to date. The Supreme Court has never heard a case involving assurances. While the U.S. Courts of Appeals have recently begun to deal with cases involving the deportation of terror suspects,47 only one case has involved diplomatic assurances from the receiving country. In Khouzam, the Court held that an individual subject to deportation based on such assurances is entitled to due process procedures to test those assurances as well as review by a neutral and impartial decisionmaker.48 The Court did not find that reliance on diplomatic assurances in deportations to countries with reputations for torture necessarily violates CAT or FARRA, as long as FARRA’s provisions are followed.49 The Court found that: “Khouzam was not afforded notice and a full and fair hearing prior to his imminent removal on the basis of diplomatic assurances. In fact, Khouzam was afforded no notice and no hearing whatsoever. First, the Government failed to make any factfinding based on a record that was disclosed to Khouzam. The Government did not permit Khouzam to see the written diplomatic assurances that had been obtained from Egypt, and provided no information pertaining to the Government’s reasons for crediting those assurances.

The Government merely provided Khouzam with a cursory three-line letter dated three months after the termination decision had been made. Khouzam had no opportunity to develop a record with his own evidence. In fact, beyond the Government’s bare assertions, we find no record supporting the reliability of the diplomatic assurances that purportedly justified the termination of his deferral of removal.”50 Though this is only one decision, it raises serious due process concerns and may force the Executive to provide a way for non-citizens to contest the assurances. If the Executive provides

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for such process, courts may determine that diplomatic assurances used to deport security risks to countries that use torture do not violate either FARRA or CAT. Given the paucity of precedent in the U.S., questions remain regarding the lawfulness of diplomatic assurances in connection with non-citizens considered by the government to be terrorist threats or supporters.

The Reliability of Diplomatic Assurances from the UN Perspective Important UN entities have addressed the practice of diplomatic assurances in connection with the removal of security risks. Though not a judicial body, the UN Committee against Torture has also played a valuable role in determining the standards for the use of diplomatic assurances in deportations. The Committee is made up of ten human rights experts tasked with monitoring implementation of the Convention against Torture by state parties. In so doing, the Committee examines complaints from individuals claiming that their rights under the Convention have been violated. In the leading decision on diplomatic assurances, Agiza v. Sweden,51 the Committee found Sweden to have violated Article 3 of CAT when it removed Mr. Agiza to Egypt.

The Agiza decision was based on the determination that it was known, or should have been known, that Mr. Agiza was likely to be tortured in Egypt, and that “the procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk.”52 The “all eyes are watching” reasoning was ultimately rejected by the Committee53 once reports revealed that Mr. Agiza had in fact been tortured while in Egyptian prison despite his high profile. The Committee also found that Article 3 requires “an opportunity for effective, independent and impartial review of the decision to expel or remove.”54 The Committee’s findings were discussed and built upon by the Office of the UN High Commissioner for Refugees (UNHCR), which published a note on diplomatic assurances and international refugee protection in 2006. UNHCR comes to the unequivocal conclusion that “the sending State acts in keeping with its human rights obligations only if such assurances effectively remove the risk that the individual concerned will be subjected to violations of the rights guaranteed therein.”55 According to UNHCR, then, assurances may only be relied upon if they are “(1) a suitable means to eliminate the danger to the individual concerned and (2) if the sending State may, in good faith, consider them reliable.”56 In addition to affirming the absolute prohibition on the transfer of persons where they risk torture, the U.N. Special Rapporteur on Torture has stated that an “unequivocal guarantee” from the receiving government is needed before a person can be extradited and that a rigorous and on-going system to monitor compliance with the assurance is necessary. The Special Rapporteur indicated that a state where use of torture is systematic cannot meet these criteria.57

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In sum, the courts and the UN actors appear to agree that diplomatic assurances are acceptable in theory, but the guarantees must ensure that the non-citizen will not be tortured. The courts have also focused on making certain that procedural safeguards are observed such that noncitizens have a fair opportunity to contest the assurance.

Supervised Release of Non-Citizen Security Risks Recently, UK courts have ordered the release of several terror suspects detained pending removal on extraordinarily restrictive conditions of bail.58 The courts originally blocked the government’s attempts to return Abu Qatada and Abu Doha to their respective countries on the grounds that they may be tortured, or prosecuted based on evidence obtained by torture, if returned.

Either would violate the ECHR. With no reasonable possibility of deportation and no prospect of indefinite detention, each individual was ordered released subject to a series of extremely restrictive conditions. In the case of Abu Qatada, the court ordered that, given the continuing and significant risks he poses, he be subject to 22 terms and conditions of bail.59 Among other restrictions, Qatada is subject to 22-hour a day house arrest; must wear an electronic monitoring tag; is banned from seeing anyone except his wife, children, and lawyer; is allowed only one bank account; is banned from communicating with a long list of people; is banned from using a mobile phone, computer, or the internet; is allowed within a limited area outside his house; and is banned from leading prayers, lecturing, providing religious instruction, or attending mosque.

The court seems to be following the framework set out in the Belmarsh Case, accepting that the threat of terrorism warrants derogation from Article 5’s guarantee of personal freedom, but depriving terror suspects of liberty only to the extent “strictly required” by the exigencies of the situation. However, because the UK has not formally derogated from Article 5 of the ECHR, there will likely be continued litigation to determine the legality of the restrictive control orders.

Under German law, non-citizens suspected of involvement in terrorism but protected against removal are not detained, but are subject to supervised release. Despite a significant conservative push for detention, perhaps indefinitely, of suspected international terrorists, the Residence Act of 2004 provides only for a system of police surveillance. The Act requires those ordered removed for involvement in terrorist activities to report regularly to the police and not leave the district of the non-citizen’s authority. Additional restrictions and conditions of supervision, such as restricting the use of telecommunication services, are contemplated as well.

In sum, the indefinite detention of non-citizen security risks is not legal in the UK or Germany, and its constitutionality has not yet been tested in the U.S. Diplomatic assurances have been problematic: the courts appear to consider them legal in principle but have prevented deportations where the agreement does not clearly ensure that the non-citizen will not be tortured. The

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legislation and jurisprudence on indefinite detention and diplomatic assurances, then, has led at times to the use of supervised release in the UK and Germany. At this time, it does not appear that the United States has used supervised release as a means of controlling non-citizen security risks.

What Should States Do? When governments cannot prosecute suspected terrorists or terrorist supporters for violating criminal laws, how should states best provide security to civilians and ensure that non-citizens are not returned to torture?

Indefinite Detention The strongest argument in favor of a policy of indefinite detention is undoubtedly the most simple. Detaining non-citizen terrorist suspects who cannot be deported can ensure that they will not participate in terrorist activities. Imprisonment is the easiest way for a state to render terror suspects incapable of directly harming innocent civilians.

In terms of other possible advantages, indefinite detention may provide greater opportunities for interrogation and intelligence gathering. Some might suggest that indefinite detention demonstrates a government’s seriousness about cracking down on terrorism and may deter individuals from entering and targeting their country. The extraordinary commitment of contemporary terrorists to their missions belies that notion, however. In any case, these possible benefits are only incidental to the crux of the policy case for indefinite detention: preventing individuals from participating in terrorist activities.

Perhaps the most pragmatic argument against a policy of indefinite detention is that it creates an extraordinarily useful recruitment tool for extremists. A policy that appears to indiscriminately lock up foreign persons, presumably predominantly Middle Eastern and North African persons, is not conducive to winning the battle for hearts and minds among those most at risk of being lured into extremism.

An equally strong argument against the use of indefinite detention is that it erodes the rule of law and violates the elemental human right of liberty. It denies this right to individuals on mere suspicion of involvement with terrorism and without formal charge. Such an approach is out of step with the very premise of the rule of law, which rests on the idea that an individual’s fate must be determined by a fair, predetermined process, not by executive fiat. It is more consistent with an authoritarian rather than a liberal democratic system for the state to detain a person without charge or the possibility of release because it suspects that the individual threatens the security of the state. Such a policy risks undermining the rule of law beyond the immigration system, as the legal system removes checks against the arbitrary exercise of state power.

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On balance, even if the law allows a state to indefinitely detain, states are better off finding another way to protect the state from a security risk. The public in liberal democracies certainly supports the criminal prosecution of security risks, but indefinite detention without charge strikes at the heart of democratic values. No Western state today uses indefinite detention of non-citizen security risks.

Diplomatic Assurances This, of course, puts pressures on states to remove security threats. The U.K.’s Special Immigration Appeals Commission has articulated the arguments most commonly used in favor of such deportations. The removal of a potential terrorist prevents him from actively operating within the country, disrupts the organization of terrorist activities, is not an unduly harsh punishment, and is preferable to holding an individual without charge.

Others assert that the transfer of persons will do little to stop terrorism and will only send it elsewhere.60 The U.K.’s Newton Committee, charged by Parliament with reviewing antiterrorism measures, has stated, “Seeking to deport terrorist suspects does not seem to us to be a satisfactory response, given the risk of exporting terrorism. If people in the UK are contributing to the terrorist effort here or abroad, they should be dealt with here. While deporting such people might free up British police, intelligence, security and prison service resources, it would not necessarily reduce the threat to British interests abroad, or make the world a safer place more generally. Indeed, there is a risk that the suspects might even return without the authorities being aware of it.”61 In many cases, according to human rights organizations, states seek the use of assurances where there is a high likelihood of torture.62 In a number of documented cases,63 diplomatic assurances have failed to protect the transferred person from torture in the receiving state. According to Human Rights Watch (HRW), several factors have likely led to the known failures. Diplomatic assurances are only sought in situations where there is reason to believe that a serious risk of torture exists without a governmental pledge. HRW argues that post-return monitoring is unlikely to be effective. Finally, the agreements are not legally binding, so there is little incentive for states to comply or to report a breach.64 The type of state behavior that the diplomatic assurance attempts to control affects the ability to monitor its use. As mentioned above, diplomatic assurances have long been used in extradition cases where a sending state seeks to insure that the receiving state will provide a fair trial to the transferred person or will agree to not impose the death penalty. Assurances regarding a fair trial and the death penalty present fewer obstacles to the appropriateness and successful use of diplomatic assurances than assurances against torture because states can more easily monitor

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and enforce these assurances through non-legal means.65 Most importantly, a fair trial and an execution are easy to monitor; they are one-time events that are relatively public. Torture, on the other hand, is ongoing, conducted in secret, and often defies detection by third parties.

Additionally, the death penalty is not a violation of international law. A state that uses torture is already in violation of international law norms, so there is less reason to trust such a state to abide by a bi-lateral agreement.

The problem, according to Gijs de Vries, the European Union’s Counter-Terrorism Coordinator from 2004 to 2007, is that diplomatic assurances are “an inadequate guarantee when provided by countries where torture is ‘endemic’ or ‘a recalcitrant or enduring problem.’”66 Proposed legislation in the U.S. attempts to address this. Specifically, the Torture Outsourcing Prevention Act67 and the Convention Against Torture Implementation Act68 would require the Secretary of State to create an annual list of countries where there are substantial grounds for believing torture occurs. Under the bills, transfers to those countries would be prohibited based on diplomatic assurances. In order for the U.S. to remove an individual to a listed state, the government must meet two requirements. First, the Secretary of State would have to certify to Congress that the listed state no longer engages in acts that violate the Torture Convention. Second, a mechanism must be in place to ensure the United States that no such violation occurs with respect to the deportee, including, at a minimum, “unfettered and continuing” access to the returned individual by an independent humanitarian organization.

Diplomatic assurances in connection with the removal of non-citizen security risks, then, are highly problematic. While they may be politically expedient at times, such assurances may not result in the intended security benefit desired by the removing country. Moreover, the violations of the Torture Convention that occur when individuals removed with assurances are subject to torture or cruel, inhuman or degrading treatment undermine a core value of modern liberal states and play into the hands of terrorist organizations looking for new recruits. The price paid is not worth it when there are better alternatives. Shaming states by listing them as torturers and requiring mechanisms to ensure that torture activities have ended, as proposed in the Torture Outsourcing Prevention Act, are worthwhile steps that may enable removal to occur in accordance with core liberal democratic values. Supervised release, a tool that is immediately available to governments, can protect the public from security risks and at the same time respect the fundamental responsibility of states not to return people to states that torture their citizens.

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Supervised Release Like indefinite detention, supervised release ensures that states do not return non-citizens to countries that engage in torture or cruel, inhuman or degrading treatment of people. How does supervised release fare, however, with respect to preventing non-citizens from engaging in or supporting terrorist acts?

Supervised release for non-citizens considered to be security threats to a state seriously constrains that person’s liberty. As discussed above, the UK has imposed extremely restrictive conditions on such individuals. These restrictions have included, for example, 22-hour a day house arrest; restriction to a very limited area of movement outside the home; frequent calling in to monitors; a ban from seeing anyone except a spouse, children, and a lawyer; a credit card ban and access to only one bank account; a ban from communicating with a long list of people; a ban from using a mobile phone, computer, or the internet; and being required to always wear an electronic monitoring tag.

Given that individuals present varying degrees of threat, not all individuals considered to be security risks necessarily require such major constraints on freedom of movement in order for the state to prevent them from engaging in undesirable activities. In that sense, supervised release is a flexible tool that enables states to employ constraints in a somewhat measured fashion. Of course, states need to use this policy only when a non-citizen truly presents a threat and cannot be successfully prosecuted for criminal violations.

While some politicians may at times prefer the harsh measures of indefinite detention or return to a state that tortures its own citizens, supervised release best balances the tension between security and core values that states confront with non-citizen security threats. Supervised release can be as effective as indefinite detention in preventing an individual from harming civilians. The security advantages of removal, in contrast, are more debatable. Moreover, when such removal results in torture, the removing state loses both in terms of its core values and image abroad.

Serious restrictions on movement under supervised release, of course, come at a price. But given the limited choices, states would do well to stop using diplomatic assurances when they have a better means of controlling security risks and respecting fundamental values.

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ACKNOWLEDGEMENTS Jennifer Hojaiban and Julia Follick, Research Assistants and J.D. candidates at Georgetown University Law Center, provided helpful research in support of this paper.

NOTES 1 2 3

4 5 6 7 8 9 10 11 12 13 14 15 16

17

Explanatory Memorandum to the Prevention of Terrorism Act 2005, § 7.3, available at http://www. opsi.gov.uk/si/si2008/em/uksiem_20080559_en.pdf.

“U.S. Steps Up Deportation of Immigrant Criminals,” Washington Post, February 27, 2008, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/02/26/AR2008022603705. html.

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, § 412. The power may have been transferred from the Attorney General to the Secretary of Homeland Security after the establishment of the Department of Homeland Security in 2003, but apparently that issue has not been resolved by the Executive branch.

Immigration and Nationality Act, § 236A. Immigration and Nationality Act, § 236A(6).

Immigration and Nationality Act, § 236A(7).

Issues related to the indefinite detention of terror suspects in Guantanamo Bay or elsewhere are beyond the scope of this paper. We address only the issue of what states are doing when they wish to deport non-citizen terror suspects but are unable to do so in order to prevent torture.

David Cole, Testimony on the USA PATRIOT Act before the Senate Judiciary Committee, May 10, 2005 available at http://www.fcnl.org/issues/item.php?item_id=1376&issue_id=68.

Zadvydas v. Davis, 533 U.S. 678, 690 (2001).

Clark v. Martinez, 543 U.S. 371, 386 (2005).

Zadvydas, 533 U.S. at 696.

UNHCR Note on Diplomatic Assurances and International Refugee Protection, 2 (2006), available at www.unhcr.fi/se/Protect_refugees/pdf/Diplomatic_assurances_Int_Ref_protection.pdf.

Human Rights Watch, Empty promises: Diplomatic Assurances no Safeguard Against Torture, 3 n.2 (2004), available at www.hrw.org/reports/2004/un0404/.

UNHCR Note on Diplomatic Assurances and International Refugee Protection, 2 (2006), available at www.unhcr.fi/se/Protect_refugees/pdf/Diplomatic_assurances_Int_Ref_protection.pdf.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984).

See Human Rights Watch, Empty promises: Diplomatic Assurances no Safeguard Against Torture (2004), available at www.hrw.org/reports/2004/un0404/.

Schoenholtz and Goodman

17 Human Rights Watch, Witness Statement of Julia Hall, 10, available at www.hrw.org/ backgrounder/eca/ecaqna1106/witnessstatementjuliahall.pdf.

18 Id. at 11. The United Nations Committee Against Torture monitors states’ compliance with the Convention Against Torture, but its rulings are only declaratory. In fact, the Swedish Foreign Minister publicly stated that there was no legal obligation on Sweden after the Committee ruled against it.

19 United Kingdom Security Service, Countering International Terrorism: Pursuing Terrorists, ¶ 72, 2007, available at http://www.mi5.gov.uk/output/Page306.html.

20 Id. ¶ 74.

21 Chahal v. United Kingdom (1996) 23 EHRR 413.

22 Human Rights Watch, Still at Risk: Diplomatic Assurances No Safeguard Against Torture, (2005) 14, available at http://hrw.org/reports/2005/eca0405/.

23 See Chahal, 23 EHRR at 413.

24 Ismoilov and Others v. Russia, Application No. 2947/06, 24 April 2008.

25 Saadi v. Italy, Application no. 37201/06, 28 February 2008.

26 Id. 27 “[The Court] must therefore reaffirm the principle stated in the Chahal judgment that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3, even where such treatment is inflicted by another State.” Id., at ¶ 138.

28 The note verbale from the Tunisian Ministry of Foreign Affairs in response to Italy’s request for assurances that Saadi would not be tortured or denied a fair trial read: “The Minister of Foreign Affairs hereby confirms that the Tunisian laws in force guarantee and protect the rights of prisoners in Tunisia and secure to them the right to a fair trial. The Minister would point out that Tunisia has voluntarily acceded to the relevant international treaties and conventions.” Id., at ¶ 55.

29 Id., at ¶ 147-48. The “real risk” of torture standard applied by the ECtHR interpreting the ECHR is a lower one than CAT’s “more likely than not” standard, which the U.S. and Canada apply. That may result in tighter judicial control of diplomatic assurances in Europe than in North America.

30 See e.g. Mamatkulov and Askarov v. Turkey, Application nos. 46827/99 and 46951/99, February 4, 2005; Shamayev and Others v. Georgia and Russia, Application no. 36378/02, April 12, 2005.

31 Intervention Submitted by Human Rights Watch and AIRE Center, Ismoilov and Others v. Russia, Application No. 2947/06, July 2007, ¶ 42.

32 Human Rights Watch, "UK: Appeals Court Blocks National Security Deportations", April 7, 2008, http://www.hrw.org/en/news/2008/04/07/uk-appeals-court-blocks-national-securitydeportations 33 See also MT, RB and U v. Secretary of State for the Home Department, 2007 EWCA Civ. 808 (July 30, 2007), similar holding.

34 Oberlandesgericht Duesseldorf, in the case of Metin Kaplan, 4Ausl (a) 308/02-147.203-204.03III, May 27, 2003, p. 23.

35 Joint Statement German Federal Ministry of Interior and Ministry of Interior of North Rhine Westphalia, “Schily and Behrens Regret Decision of OLG Duesseldorf in Kaplan Case,” Berlin, May 27, 2003.

36 Id.

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37 BVerwG 1 C 14.04, Dec. 7, 2004.

38 Human Rights Watch, “Cases Involving Diplomatic Assurances against Torture,” January 2007; Bernstein, ‘Germany Deports Radical Long Sought by Turks’, New York Times, October 13, 2004, available at http://www.nytimes.com/2004/10/13/international/europe/13turkey.html?_ r=1&oref=slogin.

39 Amnesty International Report on the Federal Republic of Germany 2008, available at http://thereport. amnesty.org/eng/Regions/Europe-and-Central-Asia/Germany.

40 [2002] 1 S.C.R. 3, 2002 SCC 1 (Can.) 41 Id. at ¶ 124.

42 Id. at ¶¶ 122-123.

43 Id. at ¶ 78.

44 REDRESS, “Terrorism, Counter-Terrorism, and Torture: International Law and the Fight against Terrorism,” section 2.3.1, July 2004, available at http://ejp.icj.org/IMG/UKRedress4.pdf.

45 8 C.F.R. § 208.18(c).

46 8 C.F.R. § 208.16(c)(2).

47 Hussain v. Mukasey, 518 F.3rd 534 (7th Cir. 2008) 48 Khouzam v. Attorney General of the United States et al, Nos. 07-2926 & 08-1094, 52-53 (3rd Cir. 2008).

49 Id. at 44-46.

50 Id. at 52-53.

51 Agiza v. Sweden, Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003 (2005).

52 Id. at ¶ 13.4.

53 “The State party points out... that the cases of Mr. A and the complainant have garnered wide attention internationally as well as in Sweden. The Egyptian authorities, being aware of this, must be taken to be sufficiently astute to ensure no ill-treatment would befall the complainant.” Id, at ¶ 4.15.

54 Id. at ¶ 13.7.

55 UNHCR Note on Diplomatic Assurances and International Refugee Protection, ¶ 20 (2006), available at www.unhcr.fi/se/Protect_refugees/pdf/Diplomatic_assurances_Int_Ref_protection.pdf.

56 Id. 57 Human Rights Watch, Empty promises: Diplomatic Assurances no Safeguard Against Torture, 7 (2004), available at www.hrw.org/reports/2004/un0404/.

58 “2nd Terror Suspect Released in Britain,” New York Times, July 4, 2008, available at http://www. nytimes.com/2008/07/04/world/europe/04britain.html?_r=1&oref=slogin.

59 “Abu Qatada Bail Terms and Conditions,” Daily Telegraph, June 18, 2008, available at http://www. telegraph.co.uk/news/newstopics/politics/lawandorder/2146812/Abu-Qatada-Bail-terms-andconditions.html.

60 Immigration Law Practitioners' Association, “ILPA Evidence to the Joint Committee on Human Rights Counter-Terrorism Policy and Human Rights : Initial Stage,” http://www.ilpa.org.uk/submissions/ JCHRCounterTerrorismPolicy&HumanRights.htm.

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61 A and others v. Secretary of State for the Home Department, [2004] UKHL 56, 21-22 (appeal from [2002] EWCA Civ 1502).

62 Id. 63 Human Rights Watch has documented cases where transferred persons were tortured despite diplomatic assurances. See, e.g., Human Rights Watch, Cases Involving Diplomatic Assurances against Torture: Developments since May 2005 (2007), available at http://www. hrw.org/backgrounder/eca/eu0107/.

64 Human Rights Watch, “Diplomatic Assurances� against Torture: Questions and Answers, 3-5 (2006), available at http://hrw.org/backgrounder/eca/ecaqna1106/.

65 Human Rights Watch, Empty Promises: Diplomatic Assurance No Safegaurd against Torture, 3 n.2 (2004), available at www.hrw.org/reports/2004/un0404/.

66 Gijs de Vries, Accountability at the Level of the European Union, Symposium on Accountability of Intelligence and Security Agencies, June 7, 2007 (quoting Chahal v. United Kingdom (70/1995/576/662) 15 November 1996).

67 H.R. 1352, 110th Cong. (2007); H.R. 952, 109th Cong. (2005).

68 S. 654, 109th Cong. (2005).

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