The Lexington Principles on the Rights of Detainees

The Lexington Principles on the Rights of Detainees (Lexington Principles) is a body of international due process principles that reflect the prevailing transnational norms in the area of detainee treatment. The Lexington Principles were completed and published on April 1, 2009. The instrument consists of 45 principles and countless annotations prepared by the project's law student editorial board. A primary purpose of the drafters of the Lexington Principles was to assist the jurisprudential evolution of American constitutional due process standards after the U.S. Supreme Court's decision in Boumediene v. Bush. While each Principle is based on international law, all provisions have been drafted to facilitate vertical norm internalization into the domestic legal system of the United States and other common law countries.

History

Mission of the Lexington Principles Project "The mission of the Lexington Principles Project is to engage the international community to clarify and strengthen transnational norms pertaining to due process of law and the treatment of persons detained on suspicion of terrorist activities, and to foster a common approach to these matters, in keeping with the recommendation of the 9/11 Commission on this subject.".

The 9/11 Commission

On July 22, 2004, the 9/11 Commission issued its report on the terrorist attacks of September 11, 2001. In this report, the commission made numerous recommendations to U.S. government officials on how to better defend the United States against the spread of international terrorism. In reference to detainee treatment standards, the Commission recommended that:

"(t)he United States should engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists. New principles might draw upon Article 3 of the Geneva Conventions on the law of armed conflict. That article was specifically designed for those cases in which the usual laws of war did not apply. Its minimum standards are generally accepted throughout the world as customary international law.".The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States, Ch 12 p 380

The White House responded to the 9-11 Commission's recommendation with the following statement:

"The United States has worked closely with its coalition partners regarding the detention and treatment of captured terrorists, and is open to exploring whether a "common coalition approach" is feasible and consistent with our national security.".

Seventeen months later the 9/11 Commission met again to grade the government's progress on implementing each of the 41 recommendations detailed in its Report. The Commission gave an "F" to the commission's recommendation regarding "Coalition Standards for Terrorist Detention.".

To explain its issuance of a failing grade with respect to the government's compliance with this recommendation, the Commission stated that:

"The U.S. has not engaged in a common coalition approach to developing standards for detention and prosecution of captured terrorists. Indeed, U.S. treatment of detainees has elicited broad criticism, and makes it harder to build the necessary alliances to cooperate effectively with partners in a global war on terror.".

Washington and Lee University Several professors and alumni at Washington and Lee University sought to assist the process of implementing the 9/11 Commission's recommendation by initiating a scholarly dialogue between military practitioners and legal experts aimed at identifying the high end of prevailing transnational norms pertaining to detainee treatment. They created The Lexington Principles Project and began the lengthy process of research and analysis that culminated in the publication of the Draft Lexington Principles on the Rights of Detainees on September 25, 2008. These draft principles were approved and published in final form on April 1, 2009, along with student-edited annotations.

Methodology

Codifying the Gold Standard in Transnational Detainee Treatment Standards The Lexington Principles Project's participants did not want simply to restate existing international norms. Many groups had already aptly performed that function and such an effort would have been redundant, and possibly even counterproductive to developing a universal approach to detainee treatment. The Lexington Principles Project therefore aimed to develop a progressive set of principles recognizing the highest standards set forth in international law and the domestic legal systems of foreign nations.

Transnational Legal Process Approach To overcome the difficulties inherent in applying international law in domestic courts, the Lexington Principles Project structured its efforts in accordance with the theory of Transnational Legal Process developed by Harold Hongju Koh, the Dean of Yale Law School. The Project's use of this approach was facilitated by the availability of the considerable transnational law resources of the Transnational Law Institute at Washington and Lee University School of Law.

Due Process Paradigm The Transnational Legal Process approach required the group to focus on vertical process throughout all stages of norm definition. The result was the creation of an innovative conceptual framework based on the familiar common law due process paradigm. Accordingly, the bulk of detainee rights under international law are categorized into one of three groups:

General Provisions Procedural Due Process Substantive Due Process

Normative Translation The term "due process" is unique to common law legal systems, and is not generally found in the text of international human rights and humanitarian law treaties. Due process is a powerful concept at common law, so it was important for the Lexington Principles to be phrased in those terms. All of the transnational norms discovered during the lengthy research phase of the Lexington Principles Project needed to be translated into aspects of due process. This was accomplished by distilling all points of mutuality in the law governing detainee treatment under both international law and domestic U.S. law down to one central right: the right to physical liberty. Principle 1 of the Lexington Principles on the Rights of Detainees codified this right, and all other rights were drafted as essentially derivative of this central guarantee.

Principle 1 states, "Physical liberty is a fundamental human right and may not be denied to any person without due process of law.".

Transnational Incorporation Doctrine The Transnational Incorporation Doctrine, first developed for the Lexington Principles, asserts that there are some principles of international law that are so fundamental to accepted global standards of justice that they should be implied as part the right to due process of law under the Fifth Amendment to the U.S. Constitution. This is a new progressive theory that has yet to be adopted by the United States Supreme Court. The theory was constructed by the professors drafting the Lexington Principles as a means of offering modern judges a jurisprudential concept that could afford them the opportunity to recognize a host of modern human rights that have developed in legal systems around the world since the American Bill of Rights was ratified in 1791. This conceptual mechanism for transnational norm internalization, if adopted by the U.S. Supreme Court, would give progressive American judges the opportunity to protect individual liberty by incorporating into the Fifth Amendment's Due Process Clause a variety of new and emerging human rights protections that pertain to modern American life in the Information Age. Liberty rights associated with privacy and personal autonomy in cyberspace were inconceivable in 1791 during the drafting of the original Bill of Rights. The Transnational Incorporation Doctrine would provide a way for courts to modernize the rights all American citizens enjoy vis-a-vis their government without the need to amend the Constitution through the cumbersome process prescribed in Article V. The formal amendment process makes meaningful change practically impossible to achieve, which is why the Lexington Principles Project crafted this new mechanism to facilitate bringing Americans rights up to the highest transnational standards.

Moving Beyond Nationality and Territoriality A significant ancillary consequence of the novel and still unadopted Transnational Incorporation Doctrine would be its effect on the rights afforded to non-United States persons under U.S. law. Presently, United States citizens and permanent residents are afforded full protection under the United States Constitution both at home and abroad, with limited exceptions. Persons who are not American citizens or permanent residents are afforded no protection under the U.S. Constitution outside of U.S. borders and substantially diminished rights while on U.S. soil. The Transnational Incorporation Doctrine, if adopted, would change the American understanding of Constitutional rights making them "human" rights rather than rights tied to nationality or territorial location.

Support for this result comes from the emerging transnational trend toward universality of international human rights law. Because international human rights are universal, the Transnational Incorporation Doctrine's new interpretation of the Fifth Amendment's Due Process Clause could result in universal application of all incorporated rights regardless of nationality or physical location. With respect to these newly domesticated transnational rights, former barriers to rights recognition based on nationality and territoriality would no longer affect applicability. Any rights incorporated through the Transnational Incorporation Doctrine would likely have to be universally afforded to all human beings by the U.S. government.

These new transnational rights likely would not be nearly as extensive as those offered to U.S. citizens in the United States, but at a minimum they would ensure that the most fundamental due process rights are always afforded in all instances where a human being is detained by the U.S. government for any reason anywhere in the world.

The Lexington Principles on the Rights of Detainees (April 1, 2009) I. Part I: General Provisions

A. Section A: Fundamental Right to Physical Liberty and Due Process of Law

1. Principle 1: Right to Physical Liberty and Due Process of Law Physical liberty is a fundamental human right and may not be denied to any person without due process of law.

B. Section B: Scope of Application

2. Principle 2: General Statement of Universal Applicability The fundamental protections inherent in the right to due process of law are universal and apply in all situations where a person has been detained by a State or its agents regardless of the reasons for, or circumstances surrounding, the detention.

3. Principle 3: Irrelevance of Geography The fundamental protections inherent in the right to due process of law are universal and should be afforded to all persons detained by a State or its agents without regard to the location of capture or detention.

4. Principle 4: Nondiscrimination The fundamental protections inherent in the right to due process of law are universal and should be afforded to all persons detained by a State or its agents without regard to nationality, national origin, ethnic origin, race, color, descent, language, religion, faith, sex, age, birth, parentage, wealth, or any other such criteria.

C. Section C: State Responsibility

5. Principle 5: General Statement of State Responsibility to Protect Each State has the responsibility to protect the right to physical liberty for all persons within its territory or otherwise under its control except insofar as they are properly detained in accordance with Principle 1.

6. Principle 6: Commencement of State Responsibility to Protect