Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
I first met Capt. Patrick McCarthy a number of years back when he was the staff judge advocate down at Guantanamo and I visited the site for a day to see the detention facilities there. Capt. McCarthy is now the staff judge advocate at U.S. Pacific Command, and in this role has been the host of the MILOPS conference the years I have attended it. He is also, however, one of the military lawyers with the most experience in counterterrorism detention operations, so I listened to his talk on the subject at MILOPS this week with particular interest. Both because of his reliance on a PowerPoint presentation and because my recording equipment failed to net a decent recording, I can’t podcast it. With Capt. McCarthy’s permission, however, I offer a brief summary of his remarks, which he characterized as “NIAC detention for dummies.” Capt. McCarthy jokingly described himself as having been sentenced to Guantanamo, having escaped, having then been sentenced to work at Parwan in Afghanistan, and having escaped from Bagram too. He knows a thing or two about NIAC detention. And he opened his talk with a strong defense of detention as an instrument in conflict. Given the alternative of killing, he notes, detention is nothing to be ashamed of. A lot of the people who were once locked up have gotten to go home to their families. Yet when he looks back at the last 12 years of detention policy, he says, there are some lessons that seem obvious in retrospect. The United States picked some fights it didn’t need to pick. Most importantly, it was less transparent than it should have been, and this lack of transparency created a deficit in trust and legitimacy. The United States, he argues, has come a long way, but the legacy remains. The irony, he points out, is that the U.S. was applying most of the required law from early on. But the secrecy and its refusal to embrace applicable law overtly obscured that. So the first lesson, he says, is that transparency is essential. Moreover, the system has to be based on reasonable determinations of threat. The guys who bring in detainees always believe in good faith their captives need to be held. Otherwise, they would not have captured them. But there have to be systems capable of making reasonable threat determinations before deciding to hold someone for a long period of time. The early review boards at Guantanamo and in Afghanistan did not generate a lot of trust. The system since 2009 in Afghanistan has garnered more respect. At Guantanamo, the review is twofold, because there is also habeas corpus. By contrast, in Afghan, there is no judicial review, so the underlying system has to be robust enough to ensure that there’s still a level of trust in the process. Legal counsel for detainees should be available if feasible, he argues. Moreover, the detainees should have maximal access to information, enough to facilitate meaningful review. Over time, he says, the U.S. was able to minimize classified information. There was a huge declassification effort. It was very painful but it paid off. People thought the world was going to end if detainees saw pieces of information. They eventually saw them. And the world didn’t end. The goal, ultimately, is a meaningful opportunity for detainees to challenge the basis for their detentions. And that review needs to continue as long as detainees are held. There also, Capt. McCarthy says, needs to be a real interaction with domestic criminal law—either military commission or civilian courts, in the U.S. context, or the Afghan criminal justice system over there. That does not mean that all detainees are going to be charged, but the criminal law is an important legitimizer of detentions where it can be used. At the end of the day, he says frankly, the courts got the U.S. back on track. The courts forced the government to validate its processes. This was a very painful process. There was a lot of reticence in the military about getting the courts involved. But it was hugely important. You’ve got to register detainees quickly after capture. Capt. McCarthy notes with some frustration that our forces fought years the suggestions that they were holding ghost detainees. It’s hard to prove the negative, he says. Ultimately, you just need a policy of registering all detainees right away to head off such suggestions. He also insists that you’ve got to bring the press in. You can’t be defensive about detention operations. People run away from detention, he says, but if you’re not proud of your detention operations and you’re not willing to be transparent about them, the press will write about them anyway, and they will write about them with incomplete or inaccurate information. Finally, he said, it’s essential to investigate every single allegation of mistreatment, and you’ve got to hold people accountable for them.
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