Do US Detention Practices Engender Support for the Taliban? Daphne Eviatar and I Debate....

Daphne Eviatar and I have an interesting exchange underway, one that I think nicely illustrates some of the key points of legal disagreement that underly the detention debate (such as whether the ICCPR applies abroad, or whether the laws of war have anything to say about detention authority in a non-international armed conflict).  We're no doubt doing nothing to convince each other of anything, but I nonetheless hope the exchange is useful for readers.  In any event, Daphne has sent me a very interesting response to my last post (which contained her earlier response and my comments in reply to it).  I reprint it below, along with my responsive comments (which I've taken the liberty of inserting between each paragraph of Daphne's statement in order to make it easy for readers to follow the exchange; I apologize sincerely if Daphne or any readers feel that this detracts from Daphne's points).  I would draw particular attention to the final part of the exchange, which raises an important question of policy regarding whether the Taliban in some sense benefits from popular rancor over US detention practices, and whether changing those practices would make a significant difference if so (an inquiry somewhat similar to Ben's earlier examination of whether GTMO really functions as an al Qaeda recruitment tool).  If any readers have special insight into that question, it would be great to hear from them.  Daphne's message begins: The problem with Bobby's position is that it assumes the right to detain is inherent in the IHL in a non-international armed conflict, such as this one. That assumption isn't warranted. Bagram detentions therefore are legally questionable and are arguably an end-run around providing due process in domestic criminal justice proceedings. It's worth noting that non-U.S. NATO forces do not claim the authority to detain, and therefore turn over those they arrest to the Afghan government for trial.

 My response: As I understand it, this is the long-time HRF position.  But I do not find it persuasive.  To be sure, CA3 does not affirmatively confer such authority on parties to conflict.  It does, however, expressly anticipate that there will nonetheless be detention separate and apart from prosecution.  This is entirely consistent with customary IHL, as the Supreme Court recognized in Hamdi (a  decision rendered in the summer of 2004 with respect to Afghanistan, at a time when the conflict there was every bit as much a NIAC as it is today).    As for non-US participants in ISAF, it’s certainly true that they don’t get into the business of detention themselves, but it’s far from obvious that this is because they believe the US acts illegally in detaining without military charge.  If the government of any NATO member is on record taking that position, I’d very much like to see it.

[Daphne again:] Having observed an Afghan trial and knowing the history of abuse and torture by the Afghan National Directorate of Security, I am not advocating that the U.S. immediately turn over all Afghan detainees to the Afghan government for trial. Still, the U.S. shouldn't be presuming the right to detain without charge, trial, or minimal due process, and that's what I believe it has done at Bagram. If the U.S. is going to assert detention authority where IHL does not provide any then it is obligated to provide at least the minimum due process set out in Common Article 3.

My response: As I made clear in my prior post, Common Article 3 very clearly does not articulate any particular process rules in connection with detention screening.  It requires adherence to (an unspecified set of) due process norms in the event that a detaining power decides to criminally prosecute someone, no more and no less.  The process that the US *does* nonetheless provide for purposes of detention screening—the Detainee Review Boards—are at least comparable to—and certainly subject to greater external scrutiny—the detention screening procedures states typically employ (see, e.g., Army Regulation 190-8). 

[Daphne again:] To be sure, international human rights law does not prohibit administrative detention. But such detention needs to be pursuant to law, and there is no law authorizing administrative detention in Afghanistan. The AUMF does not address administrative detention, either. Although the U.S. courts have read it to permit detention, they have not read it to permit detention without due process.  In Guantanamo Bay, that has meant a right to habeas corpus. In Bagram, it remains an unsettled matter.

My response: The AUMF does not mention detaining, shooting, or anything else.  It simply mentions “all necessary and appropriate” force.  The Supreme Court had no trouble in Hamdi in concluding that this would include not just killing the enemy but also detaining the enemy, at least in the context of the NIAC in Afghanistan that raged then and continues to rage today.  I don’t think the opinion in Hamdi can be read as recognizing such authority solely insofar as habeas review happened to be available to this particular person (on citizenship grounds).  After all, the Court at the very same time in Rasul v. Bush delved deeply into the question of habeas with respect to the GTMO detainees, without giving any hint that the substantive power to detain itself hinged on the question.  As to whether habeas remains a possibility for detainees in Afghanistan, I agree that this is still a live question with respect to persons captured outside the theater and brought into Afghanistan by the US, but so far the argument has had no traction in the courts with respect to people actually captured in Afghanistan and kept in custody there.

[Daphne again] Ultimately, Bagram detainees must either receive criminal trials, or if detained administratively by the United States, should be entitled to challenge that detention in a habeas proceeding. Until that matter is decisively settled by the courts, however, the United States has an obligation to provide administrative hearings that meet the minimum international standards of due process, which the current DRB process does not.

 My response: I think my prior responses cover this ground. 

[Daphne again:] Bobby is right that the U.S. doesn’t agree that the ICCPR applies to its conduct overseas, even at a U.S. military base where it clearly exercises sovereignty and jurisdiction. Still, there is also a very practical reason for the U.S. to provide more robust and transparent hearings to the 1550 + prisoners it is holding in Afghanistan.  If, as the U.S. military has long insisted, we need to win the “hearts and minds” of the Afghans in order to win this war (whatever that means in this context), then imprisoning thousands of Afghan men – usually the breadwinners for their families – indefinitely without charge or trial, giving them only superficial hearings without legal representation and where their guilt can be determined based on secret evidence, is not going to help the United States war effort.

My response: Daphne raises a terribly important question, one that highlights a problem that is probably endemic to the scenario in which a state acts as the primary counterinsurgency force in another state’s territory: how to reconcile the need to incapacitate enemy personnel (through killing or capturing them) with the need to maintain or capture the support of some critical mass of the population? Daphne advances the view that detention without criminal charge (subject to relatively conventional screening measures) strikes the wrong balance, and that shifting to either wholesale reliance on Afghan criminal prosecution or at least detention subject to something like habeas review would pay better dividends over the long term.  This is a question of policy judgment, one that depends on difficult if not impossible to prove assessments regarding (i) the extent to which the insurgency obtains meaningful popular support it would not otherwise get as a result of the use of detention under the DRB system and (ii) the extent to which this might actually change if captured persons instead were routed through either the nascent Afghan criminal justice system or through a US detention system involving habeas or its like.  I’m skeptical that our detention practices are a major driver of Taliban recruitment or support, though I have no doubt at all that one could muster some anecdotal evidence to this effect.  But let’s assume that this is indeed a significant factor.  The question then becomes whether this cost is offset by other gains—in terms of security and intelligence-gathering—so as to make the net outcome worthwhile.  I’m in no position to judge this.  In any event, it’s interesting to ask whether adopting the changes Daphne has in mind would actually change the population’s perceptions in a meaningful way. I’m doubtful that habeas or other procedural improvements to the US process would alter perceptions significantly; it seems to me that any hearts-and-minds costs we incur from running our own detention facility very likely will attach irrespective of the process we afford, as I think such costs most would stem above all from the fact that WE are running the detention process (as opposed to stemming from HOW we run it).  By the same token, of course, I would not be surprised if shifting to a wholly-Afghan system would reduce whatever costs of this nature we might be occurring; indeed, I’ve suggested something similar in my scholarship on the cycle through which our detention practices passed in Iraq between 2003 and 2010.  This is one reason, I assume, why the Rule of Law Field Force has worked so hard to help the Afghans stand up and develop their criminal justice system.  But the critical point for now is that the Afghans are not yet in a position to take on this task wholesale, to the best of my understanding.