Adnan Will Live–And So Will Administrative Detention

So much has been written in the blogosphere about Khader Adnan, the Palestinian hunger striker, that I thought I would just leave it to others. But now that his hunger strike has ended, I feel moved to make a few points.

We will probably never know if there ever was a reason, beyond harassment, for Adnan’s imprisonment. He is a member of Islamic Jihad, and some media reports state that he has or had a leadership role in that organization.

Adnan was convicted by Israel of being a spokesperson for Islamic Jihad, but has never been charged with any connection to any acts of violence against Israeli citizens.

He was detained on December 17, 2011 and was held under the Israeli program of administrative detention. The process is not dissimilar to the one the United States uses at Guantanamo Bay, where we have found used various impressive feats of legal gymnastics to justify holding people for indefinite periods without charge or trial.

The Israeli version is slightly different, as administrative detainees can be held for up to six months. But the detention can then be renewed, over and over, so it amounts to the same thing.

Israel’s agreement to release Adnan on April 17 was not a mere backing down for fear of an outcry if Adnan had died. No, it was also done to prevent an undue focus on the practice of administrative detention.

By reaching the agreement now, the media coverage has remained focused on Adnan, rather than on the process he was protesting. And that process will roll merrily along.

Here in the US, we should be paying close attention to this. The Bush Administration used Israel’s experiences as a guide in many ways to how to prosecute the so-called “war on terror.” And administrative detention was one lesson they learned.

While generally used against Palestinians, the process has also been used against some settlers, though this is very infrequent. Similarly, here in the US, recent legislation affirmed what had been a somewhat murky legal question about the US government being able to indefinitely detain suspected terrorists who were US citizens.

Think of what we’re talking about here. This is imprisonment without due process, without access to legal counsel, no hope for trial and not even a requirement that the government tell you what you are being imprisoned for.

Is that democracy?

Let’s also be clear that there is a reason this process exists. International law does recognize that security forces may sometimes have need to detain people they cannot put on trial but who pose an imminent danger to civilians. Here’s how B’Tselem: The Israeli Information Center for Human Rights in the Occupied Territories describes the law:

Under international law, it is allowed under certain circumstances. However, because of the serious injury to due-process rights inherent in this measure and the obvious danger of its abuse, international law has placed rigid restrictions on its application. According to international law, administrative detention can be used only in the most exceptional cases, as the last means available for preventing danger that cannot be thwarted by less harmful means.

And, once said danger is thwarted, the prisoner must either be charged and tried or released.

This is based on Article 9 of the International Covenant on Civil and Political Rights, which states:

“[i]n time of public emergency which threatens the life of the nation”, the state may infringe, to a restricted extent, the rights enshrined in some of the articles, including the article addressing the right to liberty. Even then, the state is restricted and may only take vital measures, and only “to the extent strictly required by the exigencies of the situation.”

That’s not what happens. Instead, people are held for years without any sort of due process, and it’s pretty difficult to argue that such a thing can be justified under the law as described above. Right now, Israel is detaining 309 people under this process.

I have no doubt that Israel, and the US, have had occasion to use administrative detention to protect civilians and when they had no other way to achieve that goal. I can’t say with absolute certainty that such was not the case with Khader Adnan.

But I can say that it is simply impossible that 309 people currently fit the standard that international law sets. The case for administrative detention, which for some prisoners lasts for years, is one that only applies to the most extreme cases, and Israel has proven itself quite expert at gathering sufficient evidence to convict Palestinians in Israeli courts.

I am delighted that Khader Adnan will not starve to death. I only wish that the eyes of the world had enough scope to focus not only on his effort, but also on this abhorrent practice that is a stain on the admittedly tattered honor of not only Israel, but also the United States.