Talk:Extrajudicial detention: Difference between revisions

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{{WPauthor|While this article uses material that first appeared on the wikipedia, [http://en.wikipedia.org/w/index.php?title{{=}}Extrajudicial_detention&diff{{=}}126338661&oldid{{=}}75277181 I was the author there too.]
Cheers!|[[User:George Swan|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 ([[CZ:Neutrality Policy|neutral]], of course) narrative here, not just have a list of brief sections.  This means CZ will have fewer sections and lengthier, "meatier" sections.
== Fresh start ==


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? --[[User:Larry Sanger|Larry Sanger]] 18:38, 18 October 2007 (CDT)
The article page now has completely new content, obviating the Wikipedia reference. It discusses international law to the extent practical as a start; the article can't be based on [[common law]] or Anglo-US practices alone. International law is emerging here; see, for example, ''[[hostis humani generis]]'', universal jurisdiction, [[extraordinary rendition]], and [[international extradition]], along with [[Geneva Conventions]] and [[Third Geneva Convention]].


:Thanks for your note.
Structurally, this is intended to be a top-level article dealing with an internationalized view. I propose that there be articles dealing with the national practices of countries where this is a substantial issue, with appropriate subarticles. For example, in my sandbox now are [[User: Howard C. Berkowitz/EJUS]] dealing with general U.S. extrajudicial detention, but, due to sheer volume, there is also (more ready for mainspace) [[User: Howard C. Berkowitz/EJUSGWB]] dealing with 2001 onwards. Certainly, there is enough material for national articles and subarticles for many countries. Hopefully, Citizens from the British Isles will deal with everything from [[The Troubles]] to the Palestinian mandate.  


: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 [[George W. Bush|Bush]] [[United States President|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.
Note also that there are complementary articles on [[interrogation]], a subset of [[eduction]], and again with a need for national articles and subarticles (e.g., in progress [[User: Howard C. Berkowitz/IntUS]] and [[User: Howard C. Berkowitz/IntUSGWB]]. I hope these will move to mainspace soon. See also the rewritten torture.  [[User:Howard C. Berkowitz|Howard C. Berkowitz]] 19:28, 11 March 2009 (UTC)


: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 combatant]]s".  The unknown number of captives who were held secretly in the CIA's "[[black site]]s" are also being held in extrajudicial detention.
:Many of the subarticles now exist, no longer in my sandbox:
:*[[Extrajudicial detention, U.S.]]
:**Extrajudicial detention, U.S., George W. Bush Administration
:*[[Intelligence interrogation, U.S.]]
:**Intelligence interrogation]]
[[User:Howard C. Berkowitz|Howard C. Berkowitz]] 20:08, 26 April 2009 (UTC)


:*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 [http://en.wikipedia.org/wiki/Bisher_al_Rawi Bisher al Rawi], [http://en.wikipedia.org/wiki/Jamil_al-Banna Jamil el-Banna] and [http://en.wikipedia.org/wiki/Saifullah_Paracha Saifullah Paracha].  Yes.  Those guys.  Cheers!  [[User:George Swan|George Swan]] 11:16, 19 October 2007 (CDT)
== Approval as top-level article? ==


: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.
With the very clear understanding, as shown in Related Articles, that this is a top-level article, should it be considered for Approval? [[User:Howard C. Berkowitz|Howard C. Berkowitz]] 20:06, 26 April 2009 (UTC)
 
:Cheers!  [[User:George Swan|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. --[[User:Larry Sanger|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.<ref name=WashingtonInstituteForNearEastStudies>
{{cite news
| url=http://www.washingtoninstitute.org/templateC05.php?CID=2680
| title=How to Handle Terrorist Suspects: No Easy Answer
| publisher=[[Washington Institute for Near East Studies]]
| author=[[Michael Jacobson]]
| date=November 14, 2007
| accessdate=2007-11-22
}}</ref>
 
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 [[habeas corpus|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.<ref name=Bush20011113>
{{cite web
| url=http://en.wikisource.org/wiki/Detention%2C_Treatment%2C_and_Trial_of_Certain_Non-Citizens_in_the_War_Against_Terrorism
| title=Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
| publisher=[[Whitehouse]]
| author=[[George W. Bush]], [[President of the United States]]
| date=[[November 13]], [[2001]]
| accessdate=2007-10-10
}}</ref><ref name=OrderEstablishingCsrt20040707>
{{cite web
| url=http://www.defenselink.mil/news/Jul2004/d20040707review.pdf
| title=Order Establishing Combatant Status Review Tribunal
| date=[[July 7]] [[2004]]
| author=[[Donald Rumsfeld]] [[Secretary of Defense]]
| publisher=[[Department of Defense]]
| accessdate=2007-04-26
}}</ref><ref name=CsrtFactSheet20061015>
{{cite web
| url=http://www.defenselink.mil/news/Oct2006/d20061017CSRT.pdf
| title=Combatant Status Review Tribunal
| date=[[October 15]] [[2006]]
| publisher=[[Department of Defense]]
| accessdate=2007-04-26
}}</ref>
 
Only eleven of the captives held in the [[Guantanamo Bay detention camp]]s have faced charges before [[Guantanamo military commissions]].
 
==References==
<references/>
 
==External links==
*{{cite news
| url=http://www.timesonline.co.uk/tol/comment/letters/article2864875.ece
| title=Pakistan's leaders must respect the rule of law
| publisher=[[The Times]]
| date=November 14, 2007
| accessdate=2007-11-22
}}
*{{cite news
| url=http://www.tsl.pomona.edu/?page=opinions&article=2786&issue=104
| title=Alberto Gonzales is a Criminal, Not a Speaker: Bringing the former Attorney General to campus would not contribute to any discussion
| publisher=The Student Life
| author=[[Heather Williams]]
| date=November 16, 2007
| accessdate=2007-11-22
}}
*{{cite news
| url=http://www.iht.com/articles/2005/12/13/news/macedonia.php
| title=Macedonia anxious about joining EU
| publisher=[[International Herald Tribune]]
| author=[[Nicholas Wood]]
| date=Tuesday, December 13, 2005
| accessdate=2007-11-22
}}
*{{cite news
| url=http://www.csmonitor.com/2006/0911/p01s03-ussc.html
| title=How New York City fights terror now
| publisher=[[Christian Science Monitor]]
| author=[[Alexandra Marks]]
| date=September 11, 2006
| accessdate=2007-11-22
}}
*{{cite news
| url=http://www.csmonitor.com/2005/0628/p06s03-wosc.html
| title=Nepal's children forced to fight
| publisher=[[Christian Science Monitor]]
| author=[[Bikash Sangraula]]
| date=June 28 2005
| accessdate=2007-11-22
}}
*{{cite news
| url=http://www.iht.com/articles/2003/12/05/edlet_ed3__0.php
| title=Letters to the editor
| publisher=[[International Herald Tribune]]
| author=[[Christopher J. Le Mon]]
| date=December 5, 2003
| accessdate=2007-11-22
}}
*{{cite news
| url=http://www.rferl.org/newsline/2003/07/5-NOT/not-240703.asp
| title=The Serban Quagmire
| publisher=[[Radio Free Europe]]
| author=[[Patrick Moore]]
| date=Thursday, 24 July 2003
| accessdate=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. --[[User:Larry Sanger|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, [[CZ:Neutrality Policy|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.  :-) --[[User:Larry Sanger|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...  --[[User:Joe Quick|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.--[[User:Martin Baldwin-Edwards|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? --[[User:Larry Sanger|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.--[[User:Martin Baldwin-Edwards|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 [[CZ:Neutrality_Policy#.22Writing_for_the_enemy.22|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. --[[User:Larry Sanger|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.  --[[User:D. Matt Innis|Matt Innis]] [[User talk:D. 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 [[George W. Bush|Bush]] [[United States President|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!  [[User:George Swan|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. --[[User:Martin Baldwin-Edwards|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. [[User:Howard C. Berkowitz|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?
 
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. [[User:Peter Jackson|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. [[User:Peter Jackson|Peter Jackson]] 11:12, 21 November 2008 (UTC)

Latest revision as of 11:51, 29 May 2024

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 Definition:  The policy and practice of holding prisoners captive without judicial authority to do so, or without a recognized authority under international law, such capture of prisoners of war [d] [e]
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Fresh start

The article page now has completely new content, obviating the Wikipedia reference. It discusses international law to the extent practical as a start; the article can't be based on common law or Anglo-US practices alone. International law is emerging here; see, for example, hostis humani generis, universal jurisdiction, extraordinary rendition, and international extradition, along with Geneva Conventions and Third Geneva Convention.

Structurally, this is intended to be a top-level article dealing with an internationalized view. I propose that there be articles dealing with the national practices of countries where this is a substantial issue, with appropriate subarticles. For example, in my sandbox now are User: Howard C. Berkowitz/EJUS dealing with general U.S. extrajudicial detention, but, due to sheer volume, there is also (more ready for mainspace) User: Howard C. Berkowitz/EJUSGWB dealing with 2001 onwards. Certainly, there is enough material for national articles and subarticles for many countries. Hopefully, Citizens from the British Isles will deal with everything from The Troubles to the Palestinian mandate.

Note also that there are complementary articles on interrogation, a subset of eduction, and again with a need for national articles and subarticles (e.g., in progress User: Howard C. Berkowitz/IntUS and User: Howard C. Berkowitz/IntUSGWB. I hope these will move to mainspace soon. See also the rewritten torture. Howard C. Berkowitz 19:28, 11 March 2009 (UTC)

Many of the subarticles now exist, no longer in my sandbox:

Howard C. Berkowitz 20:08, 26 April 2009 (UTC)

Approval as top-level article?

With the very clear understanding, as shown in Related Articles, that this is a top-level article, should it be considered for Approval? Howard C. Berkowitz 20:06, 26 April 2009 (UTC)

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