and DOUGLAS VALENTINE
Where you find administrative detentions, you are likely to find torture. The reason is simple and can be traced to the elements of administrative detention itself: the absence of human rights safeguards and normal legal guarantees such as due process, habeas corpus, fair trial, confidential legal counsel, and judicial review; vague and confusing definitions, standards, and procedures; inadequate adversarial procedural oversight; excessive Executive Branch power stemming from prolonged emergencies; and the involvement of the Central Intelligence Agency (“CIA”) or other secret, thus unaccountable, Executive Branch agencies .
Without such protections, justice does not work and human rights are jeopardized. As William F. Schultz, Executive Director of Amnesty International, put it:
“…we are witnessing the orchestrated destruction by the United States of the very basis, the fragile scaffolding, upon which international human rights have been built, painstakingly, bit y bit by bit, since the end of World War II.”
The system was been intentionally broken by the Bush Administration, just as it was by the Johnson and Nixon Administrations during the Vietnam War.
Few legal scholars or government officials have discussed the historically established connection between administrative detentions and torture. The subject only came into public consciousness with the revelation that U.S. soldiers were torturing terrorist suspects at Abu Ghraib Prison in Iraq, Bagram Airbase in Afghanistan, and the detention facilities at the U.S. Naval Base in Guantanamo, Cuba. Since then, American and foreign journalists and human rights activists began to raise suspicions, subsequently borne out, that U.S. soldiers and CIA officers were routinely torturing terrorist suspects at numerous detention centers around the world.
The Vietnam detention procedures provide a clear and compelling flow chart of the web of connections between administrative detentions, intelligence laws, national security courts (i.e. courts intended to deal exclusively with national security concerns), violations of international law (particularly the Geneva Conventions), and torture. These components now also appear in U.S. law and policies in the War on Terror.
The Phoenix Program and the War on Terror
In June 1967, the CIA launched a screening, detention, and interrogation program in Vietnam that was a major building block of what eventually became known as “the Phoenix Program.” By the end of the Vietnam War, Phoenix had become notorious for its paramilitary death squads, which claimed between 20,000 (according to the CIA) and 40,000 (according to the South Vietnamese) lives.
Seldom, however, has Phoenix been recognized for the huge detention and interrogation facet that enabled the CIA to compile computerized blacklists of suspected terrorists. As in Iraq (and the unknown “black sites” where so-called “ghost detainees” are held), where the U.S. does not keep track of civilian deaths, it is not known how many innocent people were caught in the Phoenix dragnet. It is only known that Phoenix led to the torture and murder of many, possibly thousands of innocent Vietnamese people.
The basis for the screening, interrogation, and detention aspect of Phoenix was established in 1956, when the fledgling Government of Vietnam issued Ordinance 6, which provided for the administrative detention of “security offenders.” Ordinance 6 was succeeded by several Decree-Laws and Ministerial orders, the most significant being the 1965 “Emergency Decree Law 3/65.” This law provided for “administrative detention of persons considered dangerous to the national security, without court hearing.” The detention orders were referred to as “An Tri.”
Today, the War on Terror has engendered three American detention “laws” to deal with the new enemy of the twenty-first century. These resemble An Tri detentions in numerous and various ways as discussed in the next section and the remainder of this paper. These “laws” are: Section 412 of the PATRIOT Act, which provides for mandatory indefinite detention of aliens considered dangerous to national security, the presidential Military Order of November 13, 2001 (and the accompanying Military Commissions procedures), and the presidential designations of so-called “unlawful enemy combatants.”
Through his Military Order, Bush granted himself extraordinary powers to identify al Qaeda members and those who harbor them, and to detain these people without review by the judicial or legislative branches of government. The subsequent Department of Defense Military Commissions Order No. 1 (“MCO”) was the “enabling law” that put the Military Order into effect. Finally, there came Bush’s “unlawful enemy combatant” (“UEC”) designations of United States citizens, designations not based on his Military Order but potentially triable under the MCO.
In addition to the lack of due process, the main theme of these laws is overarching executive power. In none of them are the incarcerations judicially imposed or based on proof of criminal activity that would be admissible in a court of law. In each, an official of the Executive Branch has near-complete unilateral authority to determine who is detained and for how long. Those held under Section 412 are subject to periodic review by the Attorney General and his determinations are appealable only to the United States Court of Appeals for the District of Columbia. Those subject to the Military Order may not appeal to any court of law, including international courts. The Administration claimed that those held under Bush’s unlawful enemy combatant designations had neither due process nor habeas corpus rights.
More than anything else, it is this theme of near-absolute, unreviewable executive authority that has the potential to bring Phoenix home to roost.
During the Vietnam War, the Phoenix Program coordinated the paramilitary and intelligence components of some two-dozen counterinsurgency programs in an attempt to “neutralize” the “Vietcong infrastructure” (“VCI”). The euphemism “neutralize” meant to kill, capture, make to defect, or turn members of the “infrastructure” into double agents. The word “infrastructure” referred to civilian members of the “shadow government” that was managing the insurgency in South Vietnam. In other words, the Vietcong or VCI.
Members of the infrastructure were referred to as “national security offenders” no matter what their ideology; but if they were members of the Communist Party, they were also referred to as “Communist Criminals,” insofar as Communism had been outlawed and was a separate crime of status. Screening virtually everyone in South Vietnam, and then detaining and interrogating suspects, was the systematic way the CIA sought to identify members of the VCI.
While no extant copy of Emergency Decree 3/65 has been located, a later renewal of the law, issuing from the State Department’s Agency for International Development, “continues the emergency power of the Executive [of Vietnam] to temporarily detain people considered to constitute a danger to the National Security by publicizing or carrying out Communism in any form.” Temporarily meant two years, renewable “if the offender is considered still to constitute a danger.”
Screening, detaining, and interrogating suspects was also how the CIA produced informants, defectors, and double agents. Capture of VCI was the object. But VCI of “high value” (a Phoenix term recently exhumed by the CIA and used in the War on Terror and in Iraq), were usually accompanied by bodyguards, so midnight assassinations and ambushes of high value VCI was the most common form of exploitation of the intelligence gathered through informants, defectors, double agents, and interrogations.
Under the An Tri administrative detention emergency decree, due process was totally non-existent for suspected members of the VCI . People whose names appeared on Phoenix blacklists were subject to midnight arrest, kidnapping, torture, indefinite detention, or assassination, simply on the word of an anonymous informer. After capture and interrogation, if they were still alive, they were tried by “special courts” or military tribunals not unlike those proposed by Bush that were not staffed by legally trained judges. As one official document noted: “In the Special Courts which act in terms of special laws, criminal procedures are reduced to a strict minimum.” There was “no preliminary investigation although the offense is of a criminal nature” and no appeal. The judges could not “pronounce extenuating circumstances, suspend action, nor punishment under the set minimum.” As a result, “the principle of individualization of punishment cannot apply, which is in flagrant contradiction with the concept of justice and responsibility.”
Legally unobstructed by the concepts of justice and legal responsibility, the CIA was the hidden force behind Decree 3/65 and its special courts, just as it was the hidden force behind the Phoenix Program. Likewise, the CIA is one of the hidden forces behind the reconstruction of Iraq’s Ministry of Interior, secret police forces, and judicial system, and the interrogations of detainees at various detention centers.
To escape responsibility and ensure “plausible deniability,” the CIA in Vietnam concealed the detention aspect of Phoenix under cover of the U.S. military/civilian administration in charge of the reconstruction of South Vietnam. The Vietnamese army and police Special Branch, along with U.S. military forces, provided the bulk of manpower and facilities used to “screen” detainees for the CIA, in the same way the CIA and military intelligence today train locals to apply Pentagon-mandated procedures to screen terrorist suspects abroad and maintain military control of prisons in Iraq and Afghanistan.
The CIA built Phoenix operations centers in each of South Vietnam’s 240 districts, in order to secretly identify and neutralize VCI. Often, the CIA relied on the type of heavy-handed military sweeps now being conducted in Iraq. These sweeps invariably filled makeshift detention centers (barbed wire cages with tin roofs) with innocent old men, women and children, since the actual VCI had penetrated the government’s military and police security services and often knew when the sweeps were coming. As in Iraq today, active insurgents were often better able to evade capture than innocent persons.
By its own admission, the CIA had no effective procedure of distinguishing actual “national security violators” from innocent people—an innocent person perhaps being, for example, a rival businessmen being blackmailed by the local Province Chief.
In all, the interrogation and detention centers there had substandard living conditions and indiscriminate crowding of POWs, common criminals, and VCI suspects. There was no way of knowing who should be interrogated, jailed, or released.
Like the administrative detentions under the PATRIOT Act and Bush’s Military Order, the Vietnamese-staffed military tribunals and security committees that heard cases could repeatedly delay someone’s “trial.” An Tri hearings could be delayed for up to two years or more—usually until the proper bribe was paid. When brought to trial, a person was unlikely to have a lawyer, which did not really matter, as there was no due process, no habeas corpus, and no need of evidence to convict.
The CIA’s abuses could not be hidden forever and eventually pressure from the Red Cross and liberal American Congresspersons forced the CIA to confront the same legal questions about detainees and “enemy combatants” (a designation that implies guilt before any is proven) that are now finally being raised.
Detentions Under Present-Day Federal Law
The detention provision of the PATRIOT Act added a provision to the Immigration and Nationality Act (INA), mandating that the Attorney General “shall take into custody any alien who is certified” by him. Earlier immigration law allowed for continued detention only when an alien was a danger to the community or flight risk.
An alien may be certified if the Attorney General “has reasonable grounds to believe” that the alien has engaged in any one of a great number of listed prohibited activities. The problem, of course, is that here, just as in the An Tri procedures, there is only limited judicial review of these certifications.
Once an alien is certified, “the Attorney General shall maintain custody of such an alien until the alien is removed from the United States. . . . irrespective of any relief from removal for which the alien may be eligible.” While Section 412 requires that an alien who has not been removed or charged with a crime within seven days “shall [be] release[d],” a person “whose removal is unlikely in the reasonably foreseeable future, may be detained for additional periods of up to six months . . . if the release of the alien will threaten the national security of the United States or the safety of the community or any person.” The Attorney General “shall review” the certification every six months.
The result, of course, as with the An Tri detentions, is that “[b]y the use of repeated extensions a suspect can be detained indefinitely” without ever having any sort of genuine due process hearing.
What we do not yet realize is that the precedents set by the PATRIOT Act administrative detentions of aliens not only could be expanded to include citizens, but already have been—by the President’s unlawful enemy combatant designations. The concern is not that a few innocent aliens may be indefinitely detained but that this could lead to the indefinite administrative detention of anyone who criticizes the government.
The crimes under the national security laws of the Republic of Vietnam during U.S. occupation are ominously similar to those under the alien terrorism provisions of the PATRIOT Act. Both sets of laws were intended to address acts that threaten the public safety and/or national security but neither provided for criminal prosecution, procedural due process, or Sixth Amendment-type protections. Both involved indefinite detentions.
National security and foreign intelligence concepts are central to the rationale for indefinite administrative detentions. It is these concepts that prompt or even compel the creation of detention programs that, by definition, must evade constitutional and human rights requirements. Administrative detentions are national security detentions.
Proponents of administrative detentions claim that administrative detentions are the humane alternative to dealing with national security and foreign intelligence issues—the other way being assassination. Criminal trials are viewed as inadequate. Thus, it is important to look at the definitions of these concepts.
Provisions of the PATRIOT Act, other than Section 412, where national security is a key concept are those that relate to foreign intelligence. The concept of foreign intelligence is the bridge that has permitted national security detentions to be written into our federal law. Where in South Vietnam such detentions were permitted due to insurgency, national emergency, and war fought within that nation’s borders, now they are permitted in the United States because of an amorphous (congressionally undeclared) “War on Terror” fought everywhere.
U.S. officials since 9/11 have repeatedly stated that terrorism is an utterly new animal, that we are fighting a new kind of war, but this is exactly what officials said about Vietnam. The U.S. has always perceived a need for foreign intelligence, and the two (terrorism and foreign intelligence) have now become inextricably intertwined in our laws. Where foreign intelligence used to be gathered by spying overseas (or on foreign powers and their agents who were here in the U.S.), which was exclusively an Executive Branch function, foreign intelligence investigations since 1978 have been regulated by the Foreign Intelligence Surveillance Act, or FISA, and a special, secret federal court called the FISA Court or FISC, that reviews applications to spy domestically.
While FISA was enacted in order to curb indiscriminate and unreviewable Executive Branch surveillance, the law has led gradually to the very dangerous mixing of criminal law (which provides for the usual constitutional protections) and foreign intelligence law—i.e. FISA (which does not). It has also led to the interchangeability of the terms foreign intelligence investigation, terrorism investigation, and national security investigation. In other words, anything that can be linked to a terrorism investigation is a national security investigation, which naturally involves foreign intelligence. A national security investigation may or may not involve terrorism, but will likely involve application of FISA.
Just about anything can be linked to national security. And once linked, the lowered constitutional standards of FISA kick in. This opens the door for almost anybody to be investigated and, when considered alongside the detention provision, for almost anybody to be detained.
Again, while the PATRIOT Act detention provisions are intended to permit detentions of only aliens who are thought to be national security risks, it is clear that these provisions set a precedent for government detentions of innocent dissenting citizens and can be extended to those who merely disagree with the government. Indeed, with police actions and prosecutions against grass roots activists increasing, some might argue it is already happening.
A closer look at the definitions of foreign intelligence and national security reveals some ominous threads. Oddly, national security is not defined in FISA (which is, of course, the law that most deals with issues of national security). Rather, it is defined in the immigration laws relating to excludable and removable aliens. National security is there defined as “the national defense, foreign relations, or economic interests of the United States.” Something as routine and legally permissible as a workers strike at a Coca Cola plant in Colombia could be construed as a threat under this definition.
Although national security is not defined in FISA, “threats to national security” are set forth in FISA in provisions which establish the basis for coordination between intelligence and law enforcement. These provisions use the identical language as that used in defining foreign intelligence information, discussed in the next paragraph.
Foreign intelligence information (and therefore a “threat to national security”) is:
[I]nformation that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.
This type of foreign intelligence information is sometimes called “protective” or “counterintelligence” information. It requires the type of activity we usually think of spies engaging in.
A second definition of foreign intelligence information in FISA includes information relevant or necessary “to the national defense or the security of the United States” or “the conduct of the foreign affairs of the United States.” According to the FISA Review Court: “This definition generally involves information referred to as ‘affirmative’ or ‘positive’ foreign intelligence information rather than the ‘protective’ or ‘counterintelligence’ information . . . .” This type of intelligence is a much vaguer, more expansive type of information. Just about anything could be relevant to the national defense or conduct of foreign affairs. Indeed, by this definition, the Phoenix Program was a foreign intelligence operation, designed ultimately to identify the managers of the insurgency in North Vietnam.
With either type of intelligence, it is important to remember that such information is gathered for the purpose of protecting the interests of the nation, not for bringing criminal prosecutions. This distinction is important when you consider that intelligence information is not protected by the Fourth Amendment probable cause requirement. In other words, those gathering information under a foreign intelligence investigation do not have to provide a judge with evidence of probable cause of criminal activity in order to obtain a warrant, although information obtained via a FISA warrant can nonetheless be used in a criminal prosecution.
The FISA Review Court, convened for the first time in history in 2002 to review a FISA Court decision on the interpretation of the PATRIOT Act provision relating to the proper standard for FISA warrants, noted that certain FISA definitions do require criminal activity. While FISA does not require probable cause of criminal activity, it does require probable cause that the target is a foreign power or an agent of a foreign power. Thus, the FISA Review Court noted:
The definition of an agent of a foreign power, if it pertains to a U.S. person . . . is closely tied to criminal activity. The term includes any person who “knowingly engages in clandestine intelligence gathering activities . . . which activities involve or may involve a violation of the criminal statutes of the United States,” or “knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor [sic].”
While the Court draws much of its subsequent analysis from its observation that foreign intelligence warrants do, after all, relate to criminal activity, it nonetheless notes that: “The term ‘foreign power,’ . . . is not defined [in FISA] solely in terms of criminal activity. For example, although the term includes a group engaged in international terrorism, which would involve criminal activity, it also includes any foreign government.” Thus, even if criminal activity does underlie some FISA warrants, FISA does not require proof of such activity (rather it assumes it), and the predetermined underlying criminal activity inherent in the definition is no justification for allowing a lack of probable cause of criminal activity standard in cases that eventually become criminal prosecutions. Exactly the opposite, one would think.
Astonishingly, the FISA Review Court itself acknowledged that the constitutional question of whether FISA strikes the right balance “has no definitive jurisprudential answer” and that “to the extent a FISA order comes close to meeting [the requirements of federal criminal law], that certainly bears on its reasonableness under the Fourth Amendment.” In any case, they declined to decide the issue. The Court concluded that “the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close.”