Amos Guiora on the Israeli Administrative Detention Model:

Over at the international law blog Opinio Juris, Professor Amos Guiora has been offering a set of very interesting guest posts on the Israeli administrative detention model. Professor Guiora was an Israeli JAG officer for 19 years, and has a fascinating discussion going in the series. VC readers might find it interesting - certainly I do, and I raise a question to Professor Guiora at the end (to which he replies, here), what are the differences between the judicial role in Israel and the US, and how might they affect the applicability of such a model here. Given the important discussions being had by the administration and many others over Guantanamo, detention, national security courts, etc., this is an important body of interventions, and I recommend it to you. Go here and then scroll up to see all the various posts.

Update: I'm pleased to add that Harvard Law School professor Gabriella Blum has provided Opinio Juris with a substantive comment on the question of the judiciary in Israel and its role in counterterrorism, and comparisons with the United States. Very interesting comment sent by Professor Blum from Tel Aviv.

I'm a little skeptical whether this speaks to the US's version of the problem. It seems unlikely to me that detention of more than a handful of prisoners would survive the 3-level review process described there, and especially continue to survive the review every 6 months, if it were applied with any rigor. Israel often has specific knowledge of specific terrorist plots, and names of who will play what roles in them. The U.S., to my knowledge, has more generally scooped up a bunch of people based on organizational membership and their role on the battlefield, with much less specific information about their likely future actions.

The real problem we end up having, then, is that we have a bunch of people being held for quite non-specific reasons, but a general feeling that they might be dangerous, based in part on having previously found them on a battlefield fighting against us. Not only don't we have enough evidence to charge them in civilian courts, but I think it unlikely we have enough evidence to hold them under the Israeli standard, either. So we're still left with the same problem we currently have: it seems we should release them, but we don't want to, and aren't sure where to release them to, either.
6.20.2009 9:20pm
Kenneth Anderson:
I agree overall with your assessment, which is partly what I am driving at in my intervention at OJ.
6.20.2009 9:23pm

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