Talk:Extrajudicial detention

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

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


 * Thanks for your note.


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


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


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


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


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

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

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

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

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

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

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

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

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

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

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

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

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


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


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


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


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


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


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


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


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


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


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


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


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


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


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

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

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

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

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

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

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

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

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


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