Perhaps Guantanamo Won't Get New Detainees After All? An Update on Efforts to Capture Islamic State Leaders

Robert Chesney
Monday, June 26, 2017, 10:54 AM

Yesterday, Eric Schmitt had a story in the New York Times providing a rare glimpse into the ongoing activities of the “Expeditionary Targeting Force” (“ETF”).

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Yesterday, Eric Schmitt had a story in the New York Times providing a rare glimpse into the ongoing activities of the “Expeditionary Targeting Force” (“ETF”).

ETF is the name used publicly for a Joint Special Operations Command (JSOC) manhunting operation in Iraq and Syria, focused on high-value Islamic State targets. It has been in operation since at least early 2016, though JSOC activities of this kind already were occurring as early as May 2015. Periodic reports give the impression that the manhunting does occasionally result in airstrikes. That said, there seems to be a preference for ground operations to capture the target when feasible, both in order to have the chance to interrogate the target and to collect and exploit intelligence from the site.

In light of President Trump’s oft-repeated desire to bring new detainees to Guantanamo, ETF’s activities naturally raise the question whether we will soon see an Islamic State detainee brought there. Five months into the new administration, it obviously hasn’t happened yet. Why not, and what is happening instead?

First, we do not know how often capture attempts actually have been made. Yesterday’s article recounts the attempted capture of Abdurakhmon Uzbeki in April, and references a prior raid attempting to capture an unidentified target in January. Reports back in 2016 identified another such instance, and hinted that others might have occurred (see here and here). This could be everything, or it could be just tiniest visible tip of a very large iceberg. It just isn’t clear from what has become public. Note that the Times article yesterday reports that planners take considerable care to avoid civilian casualties in such raids, and will delay raids until an opportunity to attack without such risk presents itself. The article also mentions at the end that a “small number of capture operations are in the works,” suggesting that the overall number of opportunities remains small.

Second, we know that sometimes these raids result in combat in which the target dies. That’s what happened with the Uzbeki raid in April, apparently, and also in the January raid noted above. So, no question of long-term U.S. control in such cases.

Third, we know that sometimes the target is captured and held in-theater for an initial period of interrogation, but then turned over to Iraqi or Kurdish authorities for…well, in theory for prosecution, but in practice it is much less clear what happens post-transfer. This happened with the 2015 capture of Umm Sayyaf, and another 2016 raid.

Notice there has not yet been an instance of long-term U.S.-administered custody (or at least no such case has been revealed to the public). That’s entirely consistent with the Obama administration’s policy framework, but five months into the Trump Administration it is a slight bit conspicuous. It very well could be that there just hasn’t been the right opportunity yet, and no doubt some readers are thinking as they read this that the Uzbeki raid in April might have produced a new GTMO detainee had Uzbeki not died during the raid. But this is where Schmitt’s article gets very interesting.

The whole point of the article is that U.S. personnel would have interrogated Uzbeki had he been taken alive, with the strong implication that we would have used at least short-term military detention in theater for this purposes. But what about the long-term disposition plan?

There is only one reference in the article to what would have become of Uzbeki over the long term:

Federal prosecutors had already begun preparing criminal charges against [Uzbeki] for possible prosecution in the United States.

Fascinating, isn’t it?

To be sure, that slim bit of information does not prove that prosecution in federal court was the only long-term disposition option under consideration, let alone approved for possible use. It could be that planners had in mind several possible outcomes, and it just happens that this one came out in conversation with the reporter and made it into the story. Indeed, it could be that GTMO was indeed an option, but that sources were at pains not to draw attention to that fact unnecessarily. So take it all with a grain or two of salt.

Still, it is some evidence that the Trump administration may not be so eager to bring new detainees to GTMO after all. And why might that be?

One very good reason is that any such detainee will be able to litigate their detention through a habeas petition, creating the first real opportunity for a federal judge to weigh in on the Obama/Trump claim that the 2001 and 2002 AUMFs (and the NDAA FY’12) apply to the Islamic State. Put simply, the administration might lose such a case, and with it create a vastly bigger problem for itself. (See this recent report from Heritage, per Cully Stimson and Hugh Danilack, for more). And what would be gained by running that risk? Aside from some kind of indeterminate domestic political bounce (which may or may not be large or lasting), it’s not clear why this would be preferable to the administration as compared to continuing to use the status quo model (which is, to recap: combining short-term, interrogation-focused detention in theater with a long-term disposition in which the burden falls either to local partners or (when strictly necessary or when US equities are especially high) to federal prosecutors).

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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