Preventative Detention

Hilzoy pronounces herself “happy as a clam” with President Obama’s speech yesterday on national security issues, with one glaring exception:

But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who’ve received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again.

This was followed by a long list of caveats about “fair procedures,” “the rule of law,” and “checks and balances.” While applauding the caveats, Hilzoy nonetheless retorts:

Preventive detention????????

No. Wrong answer

If we don’t have enough evidence to charge someone with a crime, we don’t have enough evidence to hold them. Period.

The power to detain people without filing criminal charges against them is a dictatorial power. It is inherently arbitrary. What is it that they are supposed to have done? If it is not a crime, why on earth not make it one? If it is a crime, and we have evidence that this person committed it, but that evidence was extracted under torture, then perhaps we need to remind ourselves of the fact that torture is unreliable. If we just don’t have enough evidence, that’s a problem, but it’s also a problem with detaining them in the first place. [all emphases original]

Were we talking about American citizens or even aliens captured on American soil, we’d be in agreement.  But we’re not.  These are people captured on the fields of battle of Afghanistan and Iraq.

Obama is quite right here:  “Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again.”  It has long been established in international law that enemies captured on the field of battle are subject to detention through cessation of hostilities.

To be sure, the present conflict introduces a new murkiness.  We are not at war with a nation-state, so there is no one with whom to negotiate a definitive surrender or peace treaty.  Further, most of the combatants in detention are not privileged belligerents under the Geneva Conventions and other laws of war in that they wore no distinguishing uniforms or insignia, fought for no state, and were not part of a traditional resistance movement.   Many if not most are war criminals who hid amongst noncombatant civilians and/or used the cover of mosques, hospitals, and other protected sanctuaries as shields.

The problem with Guantanimo is not that we’re holding enemy combatants indefinitely but rather that we’ve flouted some of the rules of the Geneva Conventions, most notably in not establishing some minimal due process to allow people to present evidence that they’re not who we claim they are.   Additionally, we used “enhanced interrogation techniques” on a handful of captives that were quite probably torture and quite certainly a violation of the laws of war.  Obama, to his credit, has renounced all of these practices.

UPDATE: It’s worth noting, as Blake Hounshel and Chris Brose do, that they’d long since been abandoned by the Bush Administration, too.  Brose:

I don’t fear for America because of the policies Obama laid out today, because I agree with Jack Goldsmith that most of these policies are largely similar in their substance to where the Bush administration ended up, often as a result of shifts in its approach during the second term based on new facts that emerged and new perspectives that were gained. This is the irony of Cheney’s current position: Many of the policies he is arguing for now were in recent years rolled back by President Bush himself, or overturned by the Supreme Court. Closing Guantanamo is an exception, but it was Bush’s stated goal to do so, and people like Secretary Rice and John Bellinger and Matt Waxman worked tirelessly to do it. Closing it now, though difficult, is both right and necessary. So in all these ways, Cheney’s argument is with Bush as much as it is with Obama.

Quite right.   For all the talk of Cheney as the power behind the throne, he was increasingly an outlier in the administration whose counsel was taken but largely not followed.

Update (Alex Knapp): I am more inclined to agree with Kevin Drum than with Hilary Bok on this issue:

I appreciate the outrage, but this is a genuinely knotty problem. It was knotty under Bush and it remains knotty under Obama. For various reasons, some defensible and some not, Obama is right: there are almost certainly a small number of Guantanamo detainees who are (a) unquestionably terrorists and unquestionably still dedicated to fighting the United States, but (b) impossible to convict in any kind of normal proceeding.

At the same time, they aren’t American citizens. They were captured on a foreign battlefield, not U.S. soil. They are, essentially if not legally, prisoners of war in a war with no end. So what do we do?

One thing that I think we should not do is let the government say “trust us” on this. If there is evidence against particular detainees, then provide it. Then we can debate the legal channels. If the law needs to be changed, Obama can go to Congress. If it’s possible to extradite some of them because they have outstanding warrants in other nations, let’s look into that. I agree that this is a hard problem, and I also agree that the simple release of some terrorists puts Americans in danger, and that risk needs to be appreciated.

That said, there needs to be some kind of open, transparent process through which claims against such detainees can be evaluated and pains can be made to ensure that detainees that their detention continued are actually dangerous. We shouldn’t just take the President’s word on it. Not any President.

Update (James Joyner): I was about to append an update linking to Kevin’s post on this but noticed Alex already had.  I agree entirely with both of them on this matter.

FILED UNDER: Law and the Courts, Military Affairs, Terrorism, , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Dave Schuler says:

    Were we talking about American citizens or even aliens captured on American soil, we’d be in agreement. But we’re not. These are people captured on the fields of battle of Afghanistan and Iraq.

    Do we know that’s the case? I was under the impression that some of those who are being detained were turned in for bounties in Afghanistan or Iraq. That’s not quite the same as “on the fields of battle”.

  2. James Joyner says:

    I was under the impression that some of those who are being detained were turned in for bounties in Afghanistan or Iraq. That’s not quite the same as “on the fields of battle”.

    I take your point. Still, Afghanistan and Iraq are war zones in which the United States is the major combatant party. It a group of, say, Wehrmacht soldiers were captured in their bunks — or simply marched over to surrender — they’d still have been held as EPWs regardless of the conditions of capture. I’m not sure what the precedent for bounty capture is in American military history.

  3. PD Shaw says:

    Dave, I believe the issue is framed in this way:

    Congress authorized the President to use all military force (which under U.S. and international law includes detention) against al-Quada and the Taliban.

    If the Pakistanis delivered bin Laden to the U.S. for bounty, I don’t think anybody would conceive of a problem.

    The question then is what is al-Qaeda?

    My view: These are prudential issues entrusted to the President.

  4. DavidL says:

    The President, as Commander-in-Chief, has full constitutional authority to detain enemy combatants. Then combatants are defined by the actor’s prior action, joining an army, taking up arms.

    There is no need to any futher authority to detain any enemey combatant On the other hand, the state has no constitutinal authority to detain any non-combatant based solely on alleged future intent. Obama can’t read the Constitution, unless it is on his teleprompter. He sure the heck can’t read anybody’s mind.

  5. Tlaloc says:

    It has long been established in international law that enemies captured on the field of battle are subject to detention through cessation of hostilities.

    True, but meaningless when you consider that this is a war in name only. There is no nation state (or alliance of same) whose partisans we are fighting. We are explicitly told we are fighting an ideology. The idea that prisoners of war will be dealt with at the cessation of hostilities has no meaning when the plan is for there not to be a cessation. Remember this is a “long war.” One that is expected to be decades long at the minimum.

    Terrorism remains a crime, and acting against terrorism is a function of law enforcement, even if it is carried out by the military (and there are legitimately times that the military should be involved). In law enforcement the accused, even non-citizens, have rights.

  6. Dave Schuler says:

    As PD Shaw notes, the question is who is a member of Al Qaeda or even who is a terrorist? The problem I see here has to do with the circumstances under which some of these people may have been apprehended. They may have been turned in by Afghans or Iraqis simply because they were foreigners, i.e. not Afghans in Afghanistan or not Iraqis in Iraq, and the U. S. was offering a bounty.

    I’m on the side of those who believe that we’re not just at war with Al Qaeda in the narrow sense of a specific group with a specific membership but with a rather broader group. Nonetheless I’m skeptical that all of those we’re holding fit the definition because of the circumstances under which they were apprehended.

    As to leaving matters up to the judgment of the president, I would think that it might be helpful for the president to have some administrative guidelines on that subject. I don’t see the president as potentate.

  7. Steve Plunk says:

    What interest does the government have in detaining innocents captured in these “war zones”? This an important question to be answered if this debate is continued. There are some making the claim we are holding innocents or people caught in the wrong place at the wrong time. Until this fundamental question is resolved we don’t know what we are debating.

  8. PD Shaw says:

    Dave, I believe that a foreigner’s presence in Afghanistan in 2001 is evidence that they were associated with al-Quada or the Taliban, particularly where their movements through countries like Saudia Arabia and Iran can be tracked. Maybe it’s not enough evidence, but it is some. I know during the American Civil War, a Georgian who found himself in Missouri was going to be detained and interrogated by the G.A.R.

  9. If doing the right thing never cost anything, there wouldn’t be evil. And in this case, maintaining the rule of law may require doing something that slightly increases the risk of future terror attacks. If so, then that’s the price of living in a just society.

    Of course, it’s a rather minimal price. Even if a 9/11 scale attack occured on a monthly basis in the US, you’d still be statistically more at risk of dying of the flu or in a car accident than at the hands of a terrorist.

  10. Grewgills says:

    What interest does the government have in detaining innocents captured in these “war zones”?

    Because evidence was handled so poorly for so long (or simply based on the word of someone looking for a bounty) that we are simply unsure who is innocent and it will be difficult to sort them.

  11. Brian Knapp says:

    What interest does the government have in detaining innocents captured in these “war zones”?

    Steve, I think that the government has no interest in detaining innocents.

    But the fundamental problem with our detainees is that we have not established a way to know whether they are innocent or guilty.

    So, the government may have no interests in holding innocents, but they may very well be holding innocents under faith that they are guilty.

  12. davod says:

    Bush wanted to close Guantanano, when they had an alternative.

    Preventative detention in the USA of who is the question – Pro-Life, Second amendment, and Federalist groups?

  13. davod says:

    “But the fundamental problem with our detainees is that we have not established a way to know whether they are innocent or guilty.”

    In a court.

  14. James Joyner says:

    In a court.

    We have never, ever required trials to establish that enemy combatants are “guilty.” We should have a judicial proceeding to establish that they’re actually combatants and not some unfortunate sap caught in a sweep – but no more than that.

  15. PD Shaw says:

    Innocence has nothing to do with anything here.

    First, it casts a false moral framework for warfare. It is not immoral to oppose a foreign military. The Geneva Convictions forbid prosecutions for simple combat.

    Second, detentions have long been recognized for circumstances for which any notion of “innocence” is misplaced. The Army Field Manual authorizes detentions for reasons of “operational security.” In other words, a bystander who accidentally becomes aware of force movements may be detained until the completion of the operation. The reasons for the detention establish the conditions.

    The Supreme Court ruled in Hamdi that the government has the authority to indefinitely detain enemy combatants (those associated with or directly supporting al-Qauda or the Taliban). The condition is that “the detaining country must release and repatriate them ‘without delay after the cessation of active hostilities,’ unless they are being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences.”

    Preventative detention is not punishment; it does not arise from convictions or sentencing.

  16. Just curious, since many of you read Mr. Drum more frequently than I do. Was he ever so, um, gracious, in his assessment of these thorny problems while President Bush faced them?

  17. James Joyner says:

    Just curious, since many of you read Mr. Drum more frequently than I do. Was he ever so, um, gracious, in his assessment of these thorny problems while President Bush faced them?

    I think so. Recall that Drum initially supported the Iraq War and is generally a pragmatist. This is a hard one to search, given the vast number of posts he wrote on Gitmo, but see, for example, this one from Feb. 2006.

    There’s more like this, and the story it tells is that the problem at Guantanamo isn’t just that it’s difficult separating fact from fiction when prisoners have been captured in the heat of battle and the witnesses against them are thousands of miles away and untrustworthy to boot. That’s a genuine problem, and not one that’s easily resolved.

  18. Davebo says:

    The Supreme Court ruled in Hamdi that the government has the authority to indefinitely detain enemy combatants (those associated with or directly supporting al-Qauda or the Taliban).

    But didn’t they essentially overrule that ruling in Boumediene v. Bush last year.

  19. PD Shaw says:

    Hamdi, was the U.S. citizen that the Court said could be treated as an enemy combat irregardless of his citizenship, but that his citizenship entitled him to some sort of process to challenge his status.

    The development in the cases leading up to and including Boumediene was that non-citizens were similarly entitled to some sort of process, though I don’t believe anybody thinks the non-citizens were entitled to the same protections as a U.S. citizen. What that process is will be Obama’s journey of discovery.

    So, no I think Boumediene merely expands on Hamdi, but it doesn’t change the basic framework that enemy combatants can be detained indefinitely and that it is a separate issue from war crimes.

  20. Tlaloc says:

    Innocence has nothing to do with anything here.

    First, it casts a false moral framework for warfare. It is not immoral to oppose a foreign military. The Geneva Convictions forbid prosecutions for simple combat.

    There is no war. No declaration of war nor a defined enemy. It’s not even a “police action” like Viet Nam which at least met one of those two requirements.

    Second, detentions have long been recognized for circumstances for which any notion of “innocence” is misplaced. The Army Field Manual authorizes detentions for reasons of “operational security.” In other words, a bystander who accidentally becomes aware of force movements may be detained until the completion of the operation. The reasons for the detention establish the conditions.

    You can’t seriously be comparing holding a civilian with mission critical details for a limited time and the unlimited detention we’ve seen at Gitmo. No I really mean that. You CAN’T compare the two.

    Preventative detention is not punishment; it does not arise from convictions or sentencing.

    Funny, it kind of seems punitive. Taking people against their will and locking them in prisons and then torturing them seems a hell of a lot like punishment. I suppose if you want to call it “sadism” that’d work instead.

  21. G.A.Phillips says:

    If the Pakistanis delivered bin Laden to the U.S. for bounty, I don’t think anybody would conceive of a problem.

    lol, you want to bet.