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Published by The Lawfare Institute
The Washington Post had an important story yesterday involving the future of the 53 military detainees who remain in U.S. custody in Afghanistan. Why not just stick with the status quo—i.e., military detention under color of the law of armed conflict? Primarily because the clock is ticking on our practical capacity to maintain the status quo. As readers of this site know well, the United States already has given up control over Afghan citizens held in our custody there, and recently have confined our detention ops there to a rump group of non-Afghans (some captured in Afghanistan, others elsewhere). Our ability to sustain that lingering detention system into the future is dubious, however. A host of factors cut against it. Increasing resistance from the Afghans. Renewed domestic litigation pressure (in the form of revived and increasingly-plausible attempts to establish habeas review as the drawdown proceeds). The potential for an outright withdrawal of the minimum necessary U.S. forces. Some or all of these factors will, sooner or later, force our hand. It happened in Iraq, and will happen here too; as I’ve written, overseas detention facilities made possible by overt combat deployments are not sustainable over the long term. Why not just wait and see what happens? Because we need to avoid a repeat of the “Daqduq Scenario”—i.e., a situation in which we have custody of a person who may have American blood on their hands, but we end up allowing the person to go free by failing to take timely action to secure a sustainable long-term detention option while it is still within reach. See here for more on the Daqduq mess. This is not at all to say that all our current detainees in Afghanistan fit this model, of course. Perhaps many or even most do not; I’m in no position to say. But if any of them do—and the Post story suggests that this is the case for Irek Hamidullan, a Russian who allegedly attacked US troops in 2009—it is important to act promptly to deal with them, before our options dwindle further. Ok, so what does this story suggest the administration has in mind? For some detainees, the goal is to secure repatriation agreements with the person’s country of origin, backed by appropriate security assurances. But for the ones the US Government wants to ensure remain incapacitated, or punished for specific criminal acts? Or more to the point, perhaps, the ones whose country of origin will passively or even actively resist having sent back to them? An alternative solution is needed. Which brings us to the trial balloon embedded in the Post article: a compromise of sorts involving trial by military commission rather than civilian court, to occur within the United States rather than at GTMO. Wait, why not civilian prosecution? Part of the answer, for better or worse, must be the radioactive politics of bringing military detainees into the civilian criminal justice system (i n my view it is unjustified to be so alarmed about that prospect as a general matter, but there it is). But that is not likely all there is to it. Insofar as a given case involves allegations of illegal conduct in a war zone directed at U.S. forces deployed into combat, the military has far more substantial equities than in a run-of-the-mill terrorism case. That is the sort of consideration that might favor selecting the commission forum even when the civilian alternative might be a plausible alternative. And it is possible, too, that the relevant evidence to be used at trial could be of a sort that would likely be admissible in a commission proceeding but not in a civilian trial subject to the Federal Rules of Evidence, for example because of differences in the rules of authentication. Finally, it may also be that this is the path of least-interagency-resistance, enabling DOD or CIA buy-in that might be harder to obtain with a civilian prosecution alternative. [UPDATE: Marty Lederman has a good post here pointing out that there is an interesting question as to what the available charge(s) might be in a military commission, among other things.] Ok, perhaps, but why not do it at GTMO, where we have spent all this money to establish military commissions already? Simple: Congress has made it very hard to remove people from GTMO once there (something that change to a degree soon), and impossible to remove to the United States (something that is unlikely to change soon). And, of course, this administration wants nothing to do with bringing new detainees into GTMO at any rate. Then why not hold the commission proceeding in Afghanistan? Several reasons. First, it might be too much for the Afghan government to swallow, with real costs on larger negotiations such as the still-unsigned security agreement. Second, it does not solve the problem of where the person would be over the long term, even if convicted. (All that said....this approach would circumvent the objection that it is too risky to bring the person to the US for trial in that it might be hard to remove the person from the US if on our territory and then acquitted or given a short sentence). Does this solve all problems? No, no more so than the existence of commissions at GTMO has solved all problems there. This is a way to reduce to the smallest number possible the set of persons who cannot plausibly be prosecuted, but who are too dangerous to release even with security assurances from a host country. We should maximize it, but we should not assume it cures all either.
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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