By Jennifer Van Bergen and Douglas Valentine October 2006


The thesis of this paper is that where you find administrative detentions, (2) you are likely to find torture. We will show that this connection exists even where it is clear that investigations and screenings leading to such detentions are, as Alberto Gonzales put it, “not haphazard, but elaborate, and careful . . . reasoned and deliberate.”(3)

This 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:

“This year we are witnessing not just a series of brutal but fundamentally independent human rights violations committed by disparate governments around the globe. This year we are witnessing something far more fundamental and far more dangerous. This year 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 by bit by bit, since the end of World War II.”(4)

The system has been intentionally broken by the Bush Administration, just as it was by the Johnson and Nixon Administrations during the Vietnan War.

A. Buried Truths about Detentions and Torture

Section 412 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“PATRIOT Act”) provides for the “mandatory detention of suspected terrorists.”(5) This section nowhere refers to the detentions as “administrative detentions,” which result from administrative (that is, Executive Branch), not judicial, determinations. Yet this is exactly what they are, and they have been used before. The U.S. Government’s internment of Japanese immigrants during the Second World War is perhaps the most recognizable example.

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1. Throughout this article, the authors use documents that were obtained by Douglas Valentine (“DV”) through Freedom of Information Act requests during the writing of his book, DOUGLAS VALENTINE, THE PHOENIX PROGRAM (reprint 2000) (1990) [hereinafter VALENTINE]. These documents are in DV’s personal collection, identified by subject and date [hereinafter DV Collection]. Documents in the DV collection are here cited by the title of the document, to the extent it can be ascertained, or by other identifying features of the document(s). See generally, Documents from the Phoenix Program: Supplied and Introduced by Douglas Valentine,

2 In this article, the terms administrative detentions, indefinite detentions, detention scheme, or simply detentions, mean “detention by the Executive Branch without traditional due process and/or human rights protections.” A large portion of the discussion in this paper focuses on illustrations of improper or inadequate process or lack of procedural protections. We understand that detentions of POW’s are lawful during the duration of an armed conflict. The detainees held in the War on Terror, however, have not been determined to be POW’s.
Where a detainee in an armed conflict is not determined to be a POW, he may not be detained indefinitely without charges. See Jordan J. Paust, Judicial Power To Determine the Status and Rights of Persons Detained Without Trial, 44 HARV. INT’L L.J. 503, 514 (2003) [hereinafter Paust, Judicial Power] (“If any person detained during an armed conflict is not a POW, such person nevertheless benefits from protections under common Article 3 of the Geneva Conventions, which applies today in all armed conflicts and which incorporates customary human rights to due process into the conventions.”).

3 Alberto R. Gonzales, Counsel to the President, Remarks Before the American Bar Association Standing Committee on Law and National Security (Feb. 24, 2004), available at[hereinafter Gonzales Remarks].

4 William F. Schultz, Executive Dir., Amnesty Int’l, Remarks at the Welcoming Plenary of the Annual General Meeting of Amnesty International (Apr. 4, 2003), http://www.amnesty

5 See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, § 412, 115 Stat. 272, 350-53 (2001) (codified at 8 U.S.C.S. § 1226a (2005)).