We are reminded once again of the Obama administration’s thorny problem regarding detainees in the War on Terrorism. First, in Afghanistan, NATO officials halted the hand-over of prisoners to Afghan custody following a United Nations report on torture and abuse in Afghan prisons.
A few days earlier it was reported that the Iraqi government released Muhammad Awwad Ahmadan, an insurgent sniper responsible for killing two U.S. Marines, after only five years in prison, citing “lack of evidence.” On Monday, the New York Times‘ reported on the acrimonious internal debate within the administration over detainee policy.
The basic issue is clear: In Iraq, Afghanistan, and throughout the region, it is imperative for military leaders to prevent unlawful enemy combatants from returning to the battlefield where they are most likely to kill again, not only to protect U.S. forces but because their targets are usually civilians, police stations and municipal buildings. How to approach the issue is the policy conundrum.
Despite serious missteps in the past, the U.S. military operates a highly professional preventive-detention program, not only at Guantanamo Bay but also in Iraq and in Afghanistan. However, unless there is some amendment to the U.S.-Iraq security agreement, the U.S. will depart on Dec. 31, 2011, and many killers will be turned over to Iraqi control … and many will simply be released as Ahmadan was. This is the concern the U.S. has over another prisoner held in Iraq, Lebanese national Ali Musa Daqduq, a Hezbollah agent on the payroll of Iran’s intelligence service implicated in the death of five U.S. servicemen.
The international political context regarding the detention of unlawful enemy combatants is confused and insufficient, morally and legally. Our European allies have chosen to “catch and release” many enemy combatants (e.g., Somali pirates) if a thorough, Western-style jury trial cannot be arranged. However, throughout history, customary international law has said that unlawful combatants (spies, mercenaries, assassins, pirates), which now include modern-day terrorists, are immoral enemies outside of and eroding the rule of law. They have no legal status, and traditionally have been worthy of summary execution.
Over the past decade, U.S. policy has been inconsistent, but generally the U.S. has chosen to detain those captured on the battlefield. This serves a pragmatic and moral purpose: not just removing them from the battlefield, but allowing for intelligence-gathering to stop future attacks.
A problem in the international arena, exacerbated by U.S. errors such as at Abu Ghraib, is the timidity of the international community—especially our European allies—when it comes to dealing with these issues. A case in point is that there has been no robust international covenant signed since the Cold War’s end specifically dealing with such non-state actors perpetrating war on states and populaces. Indeed, the writers of the most important such agreement—the 1998 Rome Statute setting up the International Criminal Court—deliberately avoided even using the word “terrorist” in the document.
Thus we return to the policy conundrum faced by the Obama administration. The U.S. has real security concerns that mandate detaining, perhaps for a very long time, numerous unlawful enemy combatants. This not only protects Americans, but civilians in Peshawar, Kabul, Baghdad and elsewhere. But the administration pledged to shutter Guantanamo Bay, the principal long-term holding facility for terrorists. The international community, to the White House’s chagrin, smugly (and hypocritically) criticizes U.S. policy while offering no new thinking for dealing with this 21st century security problem. What is Obama to do?
The administration could claim the political and moral high ground by doing two things. The first would be to announce a bipartisan 45-day review of existing U.S. policy and options as well as the current status of international law and practice. The findings of such a review would likely recommend keeping Guantanamo Bay open for the foreseeable future, which would provide political cover for President Obama to backtrack on closing the facility, particularly if such a decision is connected with a renewed pledge to finalize the drawdowns in Iraq and Afghanistan according to his timetable. However, such an approach seems unlikely, for in the first comprehensive address on detainee policy in 18 months, the administration’s counterterrorism czar called Guantanamo a “threat to national security” on Sept. 16.
In tandem with this, Obama could call for a new global architecture for defining unlawful, belligerent non-state actors that condemns them outright, provides common definitions, and justifies long-term detention policies against this pernicious threat. Such an accord would clearly articulate that such unlawful enemy combatants are not (domestic) criminals, nor are they legitimate enemy warriors: They belong to a third category of “enemies of mankind,” long recognized in customary international law. Such an approach, which would undoubtedly be debated internationally for several years, would at least allow Washington to comprehensively defend its policies and provide a potent counterterrorism tool for cooperation among like-minded allies in the days to come.