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It is commonly said that the Obama administration rejects the use of military detention, and understandably so. Many factors support that characterization, after all: no new detainees have been brought to Guantanamo under this administration; President Obama himself has depicted GTMO as inconsistent with our values and the rule of law (despite the fact that his Justice Department has been defending the legality of the GTMO detention model for seven years and counting); and in recent years we ended U.S. involvement in administering military detention both in Afghanistan and in Iraq (see here for the story of how detention policy evolved in Iraq from 2003 to 2010, derived from after-action reports generated by JAGs serving there).
But on closer inspection the story proves to be more complicated. It is more accurate to say that the Obama administration rejects reliance on U.S.-administered military detention if the detention will last beyond a limited period of time (though the precise time limits involved are unclear, and probably only determined on a case-by-case basis), but otherwise it is willing to use it if circumstances warrant it.
This much has been clear for at least five years, thanks to the two months that Ahmed Warsame spent in detention aboard a U.S. Navy vessel in 2011. By and large it has not generated much controversy, however, for short-term detention by its nature runs its course before various potential checking mechanisms--lawsuits, advocacy campaigns, etc.--can get in gear (let alone start to have serious impact). And that of course is central to the attraction of the model: it tends to avoid the various frictions (political, diplomatic, legal, etc.) in a way that long-term detention cannot, while still providing at least a limited window for U.S.-administered interrogation for intelligence-gathering purposes.
So long as there are acceptable long-term disposition options (such as transfer to custody of another country that can and will take reasonable steps to prosecute) following on the back end, there is much to be said for this model. But is it scalable?
That question has not mattered in practice for many years, for the occasions for using this model were few and far between given the shrinking American ground force footprint and role overseas. This may now be changing, however.
America took its first publicly-reported military detainee in the armed conflict with ISIS last summer, when it captured Umm Sayyaf during a SOF raid into Syria. In a paradigm illustration of the short-term detention model, she was held by the U.S. military for detention and interrogation for many weeks before later being transferred into the hands of Kurdish prosecutors. After that, no similar cases were reported for some time. Thanks to a recent shift in strategy regarding the role that JSOC plays in the conflict with ISIS, however, the short-term detention model may soon be tested at scale.
Last week, CNN's Pentagon correspondent, Barbara Starr, wrote a piece describing a recent decision to establish a JSOC manhunting operation against ISIS in Iraq (with the potential for expansion into Syria)--known as the "Expeditionary Targeting Force"--modeled on the rapid-cycle, intelligence-driven system that JSOC developed and executed in past years in Iraq and Afghanistan. The piece emphasized the importance of capturing and interrogating ISIS targets in U.S. custody, noting that the prior experience with Umm Sayyaf served as a model for how it could be done in that theater. Then, yesterday, Starr had a short follow-on piece announcing that the first set of raids conducted by the Expeditionary Targeting Force duly netted an ISIS detainee, who is now in U.S. custody undergoing interrogation, but who later will likely be handed over to Iraqi authorities.
One question this raises is whether the short-term detention model will continue to avoid the sort of friction that long-term detention tends to generate if and when the activities of the Expeditionary Targeting Force begin to draw more media attention. Another is whether JSOC has access to sufficient in-theater detention capacity, in terms of secure physical spaces and logistics, to support the scale of captivity that might result from ramping up its operations. A third is whether operations will prove to be limited by concerns about the lack of a U.S.-administered back-end disposition option. This is an issue Starr hinted at in her first piece, actually, when she wrote:
If the teams capture operatives in Iraq, the plan calls for them to be turned over to the Iraqi government. If ISIS operatives are captured in Syria, the U.S. might try to turn them back over to their home countries, officials said. But clearly if there are Syrians and other nationalities fighting, that might make a turnover difficult and the U.S. is not planning to hold the people it captures beyond a short period of time. (emphasis added)
Is it possible that the lack of a long-term, U.S.-administered military detention option might cast a shadow over decisionmaking on the front end, such that some captures might not be attempted in the first place because it is apparent that there will be a back-end disposition problem. Such a target could still be made the object of an airstrike, of course, but the intelligence value from interrogation and from site exploitation would be lost in the exchange (as would any chance to recognize and correct a mistake as to the person's identity). That said, the point is moot if there is no practical way for the U.S. to create a long-term detention facility in theater (due to Kurdish or other Iraqi resistance), or if the cooperation of local partners (and other allies) would be put at undue risk by a decision to begin removing captives to remote locations like GTMO. It is hard to judge such competing considerations from the outside, at any rate, but these are important questions for journalists in particular to explore.