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SWJED
07-07-2006, 06:29 PM
The following excerpts appeared in the 17 July (print) issue of National Review (http://www.opinionjournal.com/) - not online to non-subscribers - Bing West e-mailed a copy to the SWJ / SWC...


America as Jailer

by Bing West

...The original Gitmo population hovered around 800, but it is now down below 500. Thanks to years of questioning and thousands of inquiries with intelligence services around the globe, a record several inches thick has been accumulated on each prisoner. The interrogators are convinced that 85 percent of Gitmo inmates are terrorists who are intent on continuing their jihad even during imprisonment. Killing a guard is their highest goal, followed by suicide—as a political weapon, not an act of despair. Of 44 suicide attempts, only three have succeeded. The rest have been thwarted because guards have intervened, often at the risk of their lives.

In Guantanamo’s relatively small population, the huge expenditure of American energy has garnered intelligence dossiers that are deep in detail but narrow in scope. In Iraq, where the U.S. holds 14,000 prisoners, the problem is the opposite: Too many are set free because there are not enough resources to closely analyze each prisoner. In Guantanamo, the focus is on extracting information about terror networks through tedious, uncoerced interrogations. In Iraq, the focus is on distinguishing between al-Qaeda-type extremists and nationalist resisters. This requires skilled interrogators, and there aren’t enough of them.

THE REVOLVING DOOR

Iraq’s prime minister, Nouri al-Maliki, recently took the risk of releasing 10 percent of the estimated 25,000 prisoners in his country. The intent was to wean “mainstream Sunni resisters” away from the al-Qaeda types by releasing the former and keeping the latter in prison. While courageous and well-intentioned, this reconciliation gesture had a stark downside: After being set free, many insurgents have only had their status enhanced in the eyes of their peers. We don’t know the recidivism rate in Iraq, but in the U.S. it is over 60 percent. It is telling that some of our soldiers have begun referring to Abu Ghraib as “Osama U.”

The policy of releasing Sunni insurgents has the tragic consequence of attenuating deterrence. What do insurgents have to lose from being arrested for fighting if they know they will soon be released by authorities? By not wearing uniforms, they can take advantage of rights comparable to those afforded to criminal suspects in a liberal democracy.

The data on Iraq’s revolving door are revealing. In May, for instance, one American battalion in Ramadi detained 178 suspects—35 percent for possession of explosive devices that kill Americans, 45 percent for illegal weapons or inciting to riot, and 20 percent for outstanding arrest warrants. Every arrest required an enormous amount of hard work under a blistering sun. Each detainee was questioned by an experienced team of interrogators, supervised by a military lawyer who had been an assistant district attorney in the U.S. Within 18 hours, 100 of these arrestees were released with mere warnings. Most had been illegally carrying weapons in their cars.

The remaining 78 were charged with serious offenses. Most refused to answer questions. The arresting American soldiers filed two sworn statements for each arrest, together with photos from the crime scene. The detainees were sent to the brigade level, where 50 were released and 30 were sent to Abu Ghraib Prison to await an Iraqi hearing. Once at Abu Ghraib, still more of these detainees were released by a Combined Review & Release Board, consisting of American and Iraqi officials. The battalion was notified of each release via a convoluted Internet system. To protest any release, American troops had to secure the signature of a colonel...

... Net result: Over 85 percent of all those detained are released within six months.

Senior American officials believe the battalions are indiscriminate in making arrests. The battalions believe the senior officials are under political pressure to release hard-core killers who know how to lie. Either way, the system is broken: In the U.S., one male in 75 is in jail. In Iraq, it is one in 500. So either Iraqis are seven times more law-abiding than Americans, or the judicial system in Iraq is a mess.

Abu Musab al-Zarqawi’s death, while a major achievement, does not affect the motivations of the foot soldiers in the Iraqi insurgency. We have not created jobs for a million angry Sunni youths. Nor have we created an effective deterrent against their working for the insurgency. In Ramadi, for instance, an unemployed youth is paid $40 to emplace a roadside bomb. It is unlikely that he will be caught in the act, and, if he is caught, he knows the odds greatly favor his release. Our soldiers mock the arrest of insurgents as a “catch and release” fishing tournament.

At best, our current operating procedure shows a failure to communicate between our senior and junior military leaders. Either the lawyers and interrogation teams at the battalion level are incompetent, or the senior reviewers have become timorous because of adverse publicity, and are now determined to close all American-run prisons.

At worst, our porous anti-insurgency effort is undercutting the larger reconciliation strategy. The lack of a justice system inspires vigilantes and fuels sectarian violence, which is compounded by Shiites with militia ties who are hired as prison guards. Reconciliation is a mockery if there is no punishment for rebellion or murder. Prime Minister Maliki has justified the release of 2,500 prisoners as “a chance for those who want to rethink their strategy.” But if these freed prisoners persist with their violent attacks, more Americans and Iraqis will die...

CRIME & PUNISHMENT

So what should be done? First, stand firm on life imprisonment for terrorists. In Guantanamo, the physical evidence justifying detention is weak, but knowledge of the prisoners has led the reviewers to conclude that they remain a danger to society. In Iraq, the physical evidence is much stronger, but knowledge of terrorists’ states of mind is usually nonexistent, owing to a lack of interrogators...

Second, advertise and showcase Guantanamo as the last stop for terrorists. The Pentagon’s program of inviting reporters to see for themselves is the correct course. The United States has nothing to hide at Gitmo. The prisoners are well treated and the guards are a credit to their country. The more reporters who visit, the better.

Third, get tough on the killers. Most Americans and civilians in Iraq are killed by improvised explosive devices, yet the administration has refused to say whether it is a war crime for a man in civilian clothes to plant such a device. Stop this shilly-shally...

Fourth, repair the disconnect between the U.S. battalions in Iraq making the arrests and the senior officials who keep releasing detainees. The frequency of releases is brewing cynicism, and we must come up with a single system that enables arresting soldiers to be a part of the review-and-release program...

SSG Rock
07-07-2006, 08:43 PM
Bing Wests' piece is an affirmation of my deep seated fear. Political considerations hampering the war effort. Very frustrating, and I also suspect that this problem spans pretty much the full spectrum of ops to some degree.

Jedburgh
04-17-2007, 01:25 PM
An interesting pair of articles from the Spring 07 MP Bulletin:

Counterinsurgency Operations Within the Wire—The 306th Military Police Battalion Experience at Abu Ghraib (http://www.wood.army.mil/mpbulletin/pdfs/Spring%2007%20pdfs/Hussey.pdf)

...The detainee mission in COIN is difficult. Numerous factors and other missions will be encountered. Leaders simply must incorporate the art and science of war to complete the mission. I would suggest that the enemy prisoner of war internment/resettlement battalion modified table of organization and equipment be adjusted to include a JAG officer, a cultural advisor, and an information operations officer to support the operational theme. In an insurgency, the U.S. Army needs a civil affairs team to work with maneuver units in matters that occur between family members and detainees held by the United States. The 306th Military Police Battalion completed its mission at Abu Ghraib without having to use deadly force against any detainees. There were no serious injuries to U.S. personnel or detainees due to the use of force, and there were no substantiated claims of abuse....
Attack on Abu Ghraib: Warrior Police in an Iraq Theater Internment Facility (http://www.wood.army.mil/mpbulletin/pdfs/Spring%2007%20pdfs/Berry.pdf)

The 306th Military Police Battalion (Internment/Resettlement) operated the Abu Ghraib
Internment Facility (AGIF) in Iraq from January to November 2005. The insurgent attack on the
facility on 2 April 2005 was a testament to the quality of our Warrior Police and provided key
lessons learned for future detainee missions. The intricacy, length, and intensity of the attack and the number of attackers made this one of the most sophisticated assaults ever on a coalition facility within Iraq. More than 60 insurgents conducted this well-planned and well-coordinated attack using improvised explosive devices (IEDs), truck bombs, indirect fire, and a small-unit assault that signaled a new era in insurgency attacks.

PhilR
11-18-2007, 07:23 PM
Looking for any and all information that may relate to detention operations in COIN. I've gone through FM 3-24 and Galula's Counterinsurgency Warfare. I am also aware of the recent article in Joint Force Quarterly.
What I am looking for goes beyond the TTPs of detainee treatment, how to interrogate, etc. I'm looking for anything that describes how detainee policies were used for IO effect (selective and general release programs, differing cultural perspectives on insurgents being detained vice being killed, etc.).
To my mind its the recognition that a counterinsurgent's COIN battlespace extends "behind the wire;" Its not just from the intelligence that may be gathered, but from the actual fact of detainees being held from a community and how their status may be used in the overall COIN battle. I think it must go beyond the law enforcement impetus to get bad guys off of the street (espeically if the community does not necessarily recognize them as "bad" guys).
Thanks.

bismark17
11-18-2007, 07:34 PM
Check your email.

JeffWolf
11-18-2007, 08:14 PM
Hi,

I got all three of these by googling "Chieu Hoi." The first two seem somewhat on-point, the last less so. Hope these are helpful.

Regards
Jeff

http://www.rand.org/commentary/082505NYT.html

http://www.signonsandiego.com/uniontrib/20050626/news_mz1e26jenkin.html

http://www.rand.org/pubs/research_memoranda/2006/RM4830-2.pdf

Mike in Hilo
11-19-2007, 02:22 AM
Phil: For post-release treatment so attractive as to be tailor-made for IO, and successful IO exploitation of this fact (granting of land titles to the former insurgents), you may wish to check out the EDCOR op in the Philippine Huk insurgency. MG Lansdale offers a couple of melodramatic (as was his wont) anecdotes in his book, In the Midst of Wars, but more useful details are likely available on the net. I'd be hardput to see direct Iraq applicability, but at the least it's a potential footnote for your project.

As you no doubt know from the literature, the undeniably (see the numbers!) successful Chieu Hoi project missed the boat on post-release follow up---Some ralliers were enlisted in the allied effort (scouts, propaganda team members, PRUs), but most of the 100K plus were left to sink or swim, sans monitoring, after release from the Chieu Hoi Centers.... In retrospect, the potential use of this manpower in, say, an expanded RD Cadre force composed of ralliers instead of urban draft dodgers, could have raised interesting possibilities...

(I mention this hypothetical alernative because I suspect this is the kind of thing you're looking for, if I've correctly understood your query. Such a return of the Hoi Chanh to their villages as an organized force didn't happen, though.)

Cheers,
Mike.

Jim Rodgers
11-19-2007, 02:48 AM
It's not too detailed, but this is an account from the CO of the 306th MP BN -

http://www.wood.army.mil/mpbulletin/pdfs/Spring%2007%20pdfs/Hussey.pdf

Jedburgh
11-19-2007, 03:45 AM
....I got all three of these by googling "Chieu Hoi." The first two seem somewhat on-point, the last less so. Hope these are helpful....
You will find a tremendous amount of primary material on the Chieu Hoi program running searches in the Virtual Vietnam Archive (http://www.virtualarchive.vietnam.ttu.edu/starweb/virtual/vva/servlet.starweb?path=virtual/vva/virtual.web), an outstanding resource.

It's not too detailed, but this is an account from the CO of the 306th MP BN....
Previously posted (http://council.smallwarsjournal.com/showthread.php?t=2643) on SWC. ;)

...also previously posted, but containing some discussion of the subject under discussion, both direct and tangential, is last year's reprint from RAND of Counterinsurgency: A Symposium, April 16-20, 1962 (http://www.rand.org/pubs/reports/2006/R412-1.pdf)

JeffWolf
11-19-2007, 05:54 AM
Hi,

I came across this list on Amazon: PSEUDO-TERRORIST OPS: Deep Cover Military Sting Operations (http://www.amazon.com/PSEUDO-TERRORIST-OPS-Military-Sting-Operations/lm/Z5QFMPQ99HQY)

Both this - How collusion was built into the system (http://archives.tcm.ie/businesspost/2007/01/28/story20531.asp), and this - DOUBLE BLIND: The untold story of how British intelligence infiltrated and undermined the IRA (http://www.theatlantic.com/doc/prem/200604/ira-spy), <Teague, Matthew, Atlantic Monthly Apr 06, Vol. 297, Issue 3> - deal with Northern Ireland.

This title sounds promising - From Coercion to Consent: Selective Amnesty and Reward Programs in COIN (http://web.mit.edu/polisci/research/iiwwg/combined_amnesty.ppt)

Finally, I came across: Ramakrishna, Kumar. 2002. “‘Bribing the Reds to Give Up’: Rewards Policy in the Malayan Emergency.” 9 War in History 332.

Regards,
Jeff

JeffWolf
11-19-2007, 06:24 AM
Hi,

I forgot to post this title:

The Dirty War: Covert Strategies and Tactics Used in Political Conflicts.

<http://www.amazon.com/Dirty-War-Strategies-Political-Conflicts/dp/041592281X/ref=si3_rdr_bb_product>

Regards
Jeff

davidbfpo
11-19-2007, 11:32 AM
I'd recommend a closer look at the Northern Ireland situation, where it is commonly agreed jailing terrorists had a remarkable political impact and there was more pressure from prisoners on the political process than those outside exercised. Similar effect in South Africa. Indeed there is traffic in expertise between the two since peace.

Less well known here (in the UK) is the experience in Italy, with the Red Brigades and Spain, with ETA.

From a different angle the study of women suicide bombers held in Israeli jails has some lessons, best source I can readily find is:

http://www.labat.co.il/

Set up by an Israeli academic, Yoram Schweitzer.

davidbfpo

Rank amateur
11-19-2007, 03:56 PM
From Mao's little red book. Pretty interesting, because he wasn't exactly a democrat. I read somewhere that it worked pretty well. His policies might be worth researching.

"Our policy towards prisoners captured from the Japanese, puppet or anti-Communist troops is to set them all free, except for those who have incurred the bitter hatred of the masses and must receive capital punishment and whose death sentence has been approved by the higher authorities. Among the prisoners, those who were coerced into joining the reactionary forces but who are more or less inclined towards the revolution should be won over in large numbers to work for our army. The rest should be released and, if they fight us and are captured again, should again be set free. We should not insult them, take away their personal effects or try to exact recantations from them, but without exception should treat them sincerely and kindly. This should be our policy, however reactionary they may be. It is a very effective way of isolating the camp of reaction."

"On Policy" (December 25, 1940), Selected Works, Vol. II, pp. 446-47.*

PhilR
11-22-2007, 06:41 AM
I appreciate everyone's response. It has provided some leads and additional material to look at. I think this is a relatively understudied point. For many tactical commanders, it seems like once the intel has been pulled out of a detainee, the attitude is that they are now out of the picture and that is a good thing (I know this is probably an unfair generalization).
However, the detainees still count in the minds of the populace. Unless they are considered bad actors by the general populace, detaining them is not percieved as an action to protect the populace. This all plays into long term reconciliation and amnesty considerations.

gh_uk
11-22-2007, 07:50 AM
Two additional sources:

Fran Lisa Buntman, Robben Island and Prisoner Resistance to Apartheid. Cambridge University Press (2003)
http://www.amazon.com/Robben-Island-Prisoner-Resistance-Apartheid/dp/0521007828/ref=ed_oe_p

Kieran McEvoy, Paramilitary Imprisonment in Northern Ireland: Resistance, Management, and Release, Oxford University Press, (2001)
http://www.amazon.com/Paramilitary-Imprisonment-Northern-Ireland-Criminology/dp/0198299079/ref=sr_1_2?ie=UTF8&s=books&qid=1195717446&sr=1-2

The Buntman book is excellent and develops a theory of prisoner resistance (referred to as a 'continuum'); i.e. the different motivations and means by which 'political' prisoners exist in prison; it is also a useful account of how the ANC leadership prepared for its eventual move into government.

The McEvoy book is a slightly different book, not developing quite such a high level set of conclusions, but I don't think there is a single better detailed examination of PIRA's (and others) activities in prison.

Rank amateur
11-22-2007, 12:58 PM
I appreciate everyone's response. It has provided some leads and additional material to look at. I think this is a relatively understudied point. For many tactical commanders, it seems like once the intel has been pulled out of a detainee, the attitude is that they are now out of the picture and that is a good thing (I know this is probably an unfair generalization).
However, the detainees still count in the minds of the populace. Unless they are considered bad actors by the general populace, detaining them is not percieved as an action to protect the populace. This all plays into long term reconciliation and amnesty considerations.


Good luck. Happy Thanksgiving. I know you're busy over there, but if you get a chance, let us what you've learned. (There's lots of very smart people here, thinking about their next deployment.)

Sargent
06-11-2008, 02:51 AM
"His most notable innovation has been to institute “COIN behind the wire” — that is a counterinsurgency program aimed at weaning detainees away from terrorism."

http://www.commentarymagazine.com/blogs/index.php/boot/10831

No offense to the good general, but I have doubts about the innovation of an idea that took 50 years to realize. Probably there were other examples prior to Korea, but the most poignant example of POW insurgency was in that war, when the North had trained operatives get captured so that they could continue the war in the camps. The gap between Koje Do and Abu Ghraib suggests we might need to speed up our response cycle. The real problem that situation created for the UN war and peace effort further argues that this ought to have been more important to strategists and practitioners than a fifth-year-of-the-war effort.

Regards,
Jill

Ken White
06-11-2008, 03:11 AM
to our history; it's poorly taught, mostly and de-emphasized everywhere -- amazingly so in the Armed Forces. That and the ego that says "I don't need to know what someone else did because this situation is unique (almost never true) and I am unique (too often true -- and not in a good way)."

So, we get to continually reinvent wheels. In my lifetime we've invented round ones three times, triangular ones twice, Square five times (a US Army specialty) and polygons of various degrees about six times.

We also have 'up or out' and a personnel system that moves you to justify its own existence and those two things destroy any attempts at continuity. Add the pressure to do something stupendous in each rating season and you've got an invitation to trouble. The truly sad -- even agonizing -- thing is that virtually every error in Iraq either I or one of my equally old buds predicted and that includes the detainee bit...

Jedburgh
07-25-2008, 07:20 PM
USIP, 24 Jul 08: Iraq: Positive Change in the Detention System (http://www.usip.org/pubs/usipeace_briefings/2008/iraq_detention.PDF)

In the spring of 2004, the Abu Ghraib scandal marred detainee operations in Iraq. The photographs of American mistreatment of Iraqi detainees tarnished the U.S. image, undermined Washington’s efforts in Iraq and enflamed the insurgency. Even today, one single common denominator is found among foreign insurgents captured by Coalition forces: each has seen a seven-minute al-Qaeda film showing U.S. servicemen and women committing acts of torture and abuse.

In an effort to reverse this legacy, Major General Douglas Stone, former deputy commanding officer for detainee operations from April 2007 to June 2008, undertook massive reforms of Multinational Forces – Iraq (MNF-I) detainment. Stone spoke at USIP on June 11, 2008, one week after his redeployment from Iraq. The following is a summary of his remarks.....

AdamG
07-28-2008, 02:25 AM
US military: Iraq inmates imposed Islamic justice

By KIM GAMEL – 1 day ago

BAGHDAD (AP) — For years, extremist Iraqi detainees in U.S. custody held self-styled Islamic courts and tortured or killed inmates who refused to join them, military officials said, disclosing new details about the use of American prisons to recruit for the insurgency.

The problem became the main catalyst for a decision to separate moderate detainees from the extremists, part of a broader reform package aimed at correcting widespread U.S. prison abuses that sparked international criticism.

"We were having people who weren't insurgents who were being forced to be insurgents because of the power of these courts, the power of al-Qaida and other extremist groups," said Lt. Col. Kenneth Plowman, a spokesman for Task Force 134, which operates coalition detention facilities in Iraq.

He told The Associated Press Friday that the jailhouse Sharia courts were formed, despite the presence of U.S guards, to enforce an extreme interpretation of Islamic law. They were then used to convict moderate inmates, who were then tortured or killed, he said.

In comments published in the Sierra Vista Herald in Arizona, Brig. Gen. Rodney L. Johnson, commander of the U.S. Army Criminal Investigation Command, put the number of detainees tried by the courts in the double-digits. Neither he nor Plowman would give specific numbers.

The courts were eradicated and none has been detected in six months although some gang-related issues persist, Plowman said.

"We have a detainee population of about 21,000. You're gonna have extremists who will find a way to communicate and to form these kind of organizations," he added.

http://ap.google.com/article/ALeqM5hzj9jHSAErfAEZgoqICJYS-ttSmgD925PU1O0

Jedburgh
01-10-2009, 02:51 AM
JFQ, 1st Qtr 09: Inside the Detention Camps: A New Campaign in Iraq (http://www.ndu.edu/inss/Press/jfq_pages/editions/i52/25.pdf)

Summary of Key TF–134 Programs

- Transition Barracks In: Initially assesses motivation for joining the insurgency, criminal history, religious status, education/job skills

- Religious Discussion Program: Voluntary, but used to determine extent of religion in detainees’ lives and to develop a moderate view of Islam

- Dar al-Hikmah (Basic Education): Chance to get a minimum 5th-grade education

- Vocational Education: Job skills training

- Work Program: Compensated for voluntary work activities (for example, sewing center, mud brick facility, working parties)

- Individual Assessments: Occurs before their Multi-National Force Review
Committee hearing to consider mental health, religious ideology, education, work program performance, guard force input

- Family Advocacy and Outreach: Includes family in the rehabilitation process and grants greater access based on progress

- Lion’s Spirit: Continuing moderate religious education and training for those desiring to become an imam

- Transition Barracks Out: May spend up to a week in this program that includes courses on civics, public health, and reintegration into Iraqi society and with the family

Jason Port
01-13-2009, 05:56 AM
It is my understanding that today the United States has prisoners in Iraq and elsewhere around the world, arrested for crimes committed during the Global War on Terror and for a variety of other criminal actions. (Please don't read this as sympathy, just a statement of facts written at 0100.)

Our US due process requirements would demand certain criteria be met in order to hold a trial and adjudicate the defendant appropriately, within a reasonable period. (Again, not an ACLU lawyer) It is further my understanding that these suspects/defendants/often zealot murderers are going beyond what the American citizen considers reasonable. My question to this group is - what is the cause of this and what steps are we as a force taking to expedite these hearings?

As a former attorney, I am surprised to hear that we are holding these prisoners for so long without complete processing, and I recognize that the postings on detention operations above are key for a successful counterinsurgency. (I would suggest that an expedited detention rapidly loses efficacy, if you hold prisoners without tangible evidence and without a trial.)

Recognizing that some of this information may be sensitive, please PM me if you are uncomfortable answering in the public forum.

Schmedlap
01-13-2009, 10:38 AM
I have no uncommon or privileged information on this topic. It is just my hunch that we are delaying trials as a safeguard against the possibility that we are faced with the option of either an open trial or releasing the prisoners. Should that situation result, we will logically start with the people held the longest and work our way back. It is in our interest, in such a situation, for us to have the longest queue possible. That way, we have a time buffer between capture and trial for intelligence to become less timely and irrelevant to current operations.

Just my hunch.

Jedburgh
01-13-2009, 02:03 PM
HRW, 14 Dec 08: The Quality of Justice: Failings of Iraq’s Central Criminal Court (http://www.hrw.org/sites/default/files/reports/iraq1208webwcover.pdf)

....Human Rights Watch monitored court proceedings and met with judges, defense attorneys, defendants, and others. We found that the majority of defendants endured lengthy pretrial detention without judicial review, that they had ineffectual legal counsel, and the court frequently relied on the testimony of secret informants and confessions likely to have been extracted under duress. Judges in many instances acknowledged these failings and dismissed some cases accordingly, particularly those involving alleged torture, but the numbers of cases where such allegations arise suggest that serious miscarriages of justice are frequent. Human Rights Watch also monitored a limited number of cases involving children, and found that the authorities failed to hold them separately from adult detainees, and that their access to counsel and prompt legal hearings was no better than that of adults.

Structural problems, due in part to political fractiousness and inefficiency among Iraqi institutions, play a role in undermining the CCCI’s proceedings. Iraq’s parliament approved a General Amnesty Law (http://theiraqinsider.blogspot.com/2008/03/full-text-of-iraqs-recently-passed.html) in February 2008, in part to reduce the detainee population and thus the burden on the justice system. Persons accused of war crimes, crimes against humanity, and other offenses committed between July 1968 and May 2003 as outlined in the statute for Iraq’s Supreme Criminal Tribunal (http://www.ictj.org/images/content/1/2/123.pdf) would not be eligible for amnesty. The amnesty as passed would benefit persons held for more than six months without an investigative hearing, or for more than a year without referral to a court. Implementation, however, has lagged very seriously. The continued high number of persons in detention facilities has put serious strain on the CCCI, where dozens of judges hear thousands of cases a month, and further delayed judicial review of detentions......

Jason Port
01-13-2009, 02:15 PM
Thanks for the insights Jedburgh. The HRW stuff is helpful. I suspected much of what schmelap posted is on point from a rationale perspective. While most Americans sleep ignorant (intentionally or not) there is a nagging voice in my head that asks why can't we move this along, whether using Iraqi standards of justice our our own.

Bob's World
01-13-2009, 06:11 PM
This is really a self-inflicted head wound, as a result of not understanding and staying in our lane from the start.

First, if you keep your missions straight by not confusing the COIN being conducted by the HN government with the mission that you are conducting to support their operation. I argue that it is FID, but recognize that reasonable minds (and many joint and service pubs and a whole array of professional articles, blogs and books) can differ.

When we make it OUR operation, we inherit all of the baggage that comes with that role. To clean this mess up I would simply:

1. Recognize, announce, and embrace our supporting role, subordinate to the Host Nations we are operating in.

2. Place all detainees under their control, making it FULLY THEIR DECISION as to how they process these guys. Many would be released immediately, many would be shipped to their nation or origin, etc. We can advise, but we should not impose ourself on this process.

3. Apply that same "supported/supporting" relationship to the entire operation. In the spirit of promoting Democracy, you have to take the bad with the good. Sometimes Hamas gets elected. Deal with it, that is what makes democracy work. Sometimes the elected officials won't share the same priorities and national interests that the U.S. has in that region. Again, suck it up, that is how Democracy works. To do otherwise, to simply ignore or override HN wishes where it runs counter to our view is not Democracy, it is hypocracy. And that leads to wicked problems... like what to do with all these detainees.

Isn't our problem more one of how do we control the resolution of these detainees?

reed11b
01-13-2009, 06:49 PM
Bob's World, would say there should be an exception w/ individuals that are wanted in the U.S. for pre-existing crimes (some members of AQ)? Do we have the right to extridite them if they are captured by U.S. forces? Other then that, I agree 100%. The country that has the largest percentage of it's population incarcerated should probably not be telling other countries how to run there prisons, or running them for them.
Reed

Jason Port
01-13-2009, 09:59 PM
1. Recognize, announce, and embrace our supporting role, subordinate to the Host Nations we are operating in.

2. Place all detainees under their control, making it FULLY THEIR DECISION as to how they process these guys. Many would be released immediately, many would be shipped to their nation or origin, etc. We can advise, but we should not impose ourself on this process.


So, interesting approach to a resolution, but I worry that the natural outcome is what is in bold above - an immediate release to the prisoners. Based on the SOFA effective date of 1 JAN, I suspect that we will have to follow through with the idea of turning them over, but I suspect that this is a mess right now, and dumping a mess only results in the release of these prisoners (most, if not all of whom were detained/arrested for some reason.)

As for extradition, I suspect that this is a reasonable request, depending on the perspective of the HN govt., but I would prefer to see the trials occur on HN soil where the prisoners are, under the laws of the HN. Naturally, this empowers the HN govt, and places the power back in the hands of the people where the crime was committed. I like the idea of us advising/coaching, but I believe that the issue is upstream - Can we prove what the defendant is accused of, even under the more lenient legal requirements of HN law

The question still remains - what system or processes are in place to facilitate this occurring?

Bob's World
01-14-2009, 02:51 PM
If we allow the HN to perform the HN role, we (The US) do not have to concern ourselves over proving anything. Not in our lane. As to oversight, I believe this is one function the UN could perform reasonably well to ensure that global sensitivities are not abused in the process, and it is best that this does not become an American operation.

One key to remember is that insurgents, by definition, are a part of the populace. Key to an enduring resolution to any insurgency is for the HN government involved in the insurgency to address their failures that gave rise to the insurgency in the first place, and to sort through those members of the populace that participated and adjudicate their disposition. Most should be returned to assist in being part of the larger solution. Some will indeed need to face harsh legal consequences for their actions, but again, this is not something that an outside nation, no matter how deeply they have embroiled themselves in the problem, needs to concern themselves over.

As to the larger question of why 40% of the foreign fighters in Iraq are Saudi Citizens, 20% Libyan, and 20% Algerian (per open source); these guys really need to be sent home, or perhaps granted asylum as many are probably insurgents at home.

I guess my point is, that if you have a confused understanding of the overall nature of the problem, then you are likely to come up with confused (ie, ineffective) ways for addressing it.

Fact is, that if Saudi insurgents believe that Phase 1 to a successful insurgency at home is to go abroad to attack the US in an effort to break the support of the US to keeping that Saudi government in power; you have to ask yourself if we have the right relationship / policies in place as to the US and the Kingdom.

To simply ascribe the GWOT to Bin Laden being some sort of Pied Piper with a magic ideological "flute" that makes otherwise satisfied Muslim citizens from a broad cross-section of the Middle East to mindlessly follow him is naive at best.

We can wrestle with the symptoms of this problem until we deplete our wealth, strength, and credibility as a nation. History is full of examples of how others have fallen into this trap (Greece, Rome, Great Britain, etc). Or, we can assess the situation with honesty and humility and change the focus of our engagement to addressing the causes. My vote is for the later.

This dilemma over what to do with detainees is rooted firmly in the former.

Jason Port
01-15-2009, 02:37 PM
One key to remember is that insurgents, by definition, are a part of the populace.

As to the larger question of why 40% of the foreign fighters in Iraq are Saudi Citizens, 20% Libyan, and 20% Algerian (per open source); these guys really need to be sent home, or perhaps granted asylum as many are probably insurgents at home.



I pulled these two out of the larger, as again, I am most concerned with the disposition of the detained today. It would seem that we have a conundrum. We rightfully invade a nation and then commit to developing it back into a sovereign nation. While we are there, we make a bit of a mess while solving many of the nation's other woes.

The insurgent, as you point out above is not necessarily a member of the larger populace. Syrians, Libyans, et al, were found all throughout Iraq in the insurgency. While they would have been considered enemy combatants under force on force operations, we find ourselves treating them more as criminals. These criminals, in turn require disposition.

Turning it completely to the HN is likely not going to be a success as I would define it (conviction of the defendant), and therefore to me cannot be a viable COA. In turn, UN oversight is likely not possible given the fact that some detained were so detained on the basis of US classified data (I suspect, no personal knowledge). Further, I am not crazy about UN oversight as it strikes our credibility. Again, I don't suspect that we will find resolution here.

Bob's World
01-15-2009, 03:08 PM
There is no good answer, and to continue to try to "control" this process only mires us more deeply into it.

To be a soldier is not a crime. When a war is over, POWs are released.

Ok, you say, but this is a different type of warfare, where both parties are not states, and these guys are by definition breaking the law when they take up arms to challenge the state. All very true.

But consider US law on this topic: "But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

Key words are "right" and "duty." Under the law, a right is something that cannot be taken away; and a duty is something that one must do. In this case that right and that duty are to rise up in insurgency.

The US is probably the only nation in the world that would dare to incorporate such an inflammable piece of populace empowering language into the fabric of its doctrine, but we did and it in large part defines what we stand for as a people and a nation.

I don't make this stuff up, its right there at the heart of our Declaration of Independence. While I cannot speak for how we will deal with the problem of detainees, I for one would release them all today before I would compromise that document. My preference though, is to allow the Host Nations to resolve this based on their own laws.

Similarly, I would not be so arrogant as to tell them what those laws should be or how they should interpret them to achieve a result favorable to me as a foreigner, because:
"...it is the Right of the People ...to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

The defense of these ideals, and others like them, are why I put on a uniform every day, and there is no detainee in the world worth compromising them over.

wm
01-15-2009, 03:49 PM
But consider US law on this topic: "But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

Key words are "right" and "duty." Under the law, a right is something that cannot be taken away; and a duty is something that one must do. In this case that right and that duty are to rise up in insurgency.
. . .

The defense of these ideals, and others like them, are why I put on a uniform every day, and there is no detainee in the world worth compromising them over.

Maybe I'm picking nits, but the last time I checked, the Declaration of Independence was not US Law. Also I think that rights and duties, as used in the Declaration, are moral, not legal, concepts. However, I concur that the ideals the Declaration espouses are noble and ought to constrain how the US conducts itself vis-a-vis other nations, whether viable or failing. I hate to think of the US as being lumped in the same category as HRH George III of England and his ministers.

Bob's World
01-15-2009, 04:18 PM
Some days I think we have grown up and become our parents. I would hate to think that that is as inevitable for nation as it is for a man.

Bob's World
01-15-2009, 04:33 PM
Maybe I'm picking nits, but the last time I checked, the Declaration of Independence was not US Law.


You may be right, but we probably talk way too much these days about "the rule of law." The fact is that the rule of law, or blackletter law, has never been adequate in providing justice. I had a contracts professor who was as brilliant as he was ecentric, and his area of specialty was "Equity," or the common law. Concepts such as "good faith" and "fair dealing" are central to the concept of equity; and are a hedge against black letter law that at times leaves little room for "justice" in its pursuit cleancut right and wrong.

http://en.wikipedia.org/wiki/Equity_(law)

So, though I may be completely wrong on this, I am very comfortable in taking the positon that our "law" is the totality of many things; and just as legislation is defined by both regulations and case law, so to do items like our declaration and even the uncodified express intent of lawmakers and judges contribute to the laws of this land.

"rule of law" is a good soundbite, but it leaves a lot on the cutting room floor.

wm
01-15-2009, 06:50 PM
Some days I think we have grown up and become our parents. I would hate to think that that is as inevitable for nation as it is for a man.

Nations, as was pointed out long ago by Thomas Hobbes in Leviathan, are artificial persons, just as corporations are. We can and do make judgments about them just as we do about our neighbors and the folks we see on the nightly news or American Idol. Maybe we rush to judgment in doing so, but that, I suispect, is part of who and what we are as finitely rational beings who are also creatures of need.

wm
01-15-2009, 06:58 PM
So, though I may be completely wrong on this, I am very comfortable in taking the positon that our "law" is the totality of many things; and just as legislation is defined by both regulations and case law, so to do items like our declaration and even the uncodified express intent of lawmakers and judges contribute to the laws of this land.

"rule of law" is a good soundbite, but it leaves a lot on the cutting room floor.

Who we are as a nation (our national character if you will) is much more about things like thevalues expressed in the Declaration and how we treat each other. It is much less about the laws we pass or the legislators and judge's intent in their passage and rulings. For example, I think that only after sunset is it illegal to beat one's wife in Georgia (don't want those screams disturbing the neighbors' repose). Regardless of what this law says, we tend to think these days that good folks in America just don't beat their spouses--that's national character and has nothing to do with what the law says or was intended to say. I'd add that SCOTUS rulings tend to be about national character, but not always.

Ken White
01-15-2009, 09:51 PM
Finally answered himself. :wry:


"what is the cause of this and what steps are we as a force taking to expedite these hearings?
. . .
While most Americans sleep ignorant (intentionally or not) there is a nagging voice in my head that asks why can't we move this along, whether using Iraqi standards of justice our our own.
. . .
The question still remains - what system or processes are in place to facilitate this occurring? the answer:
Turning it completely to the HN is likely not going to be a success as I would define it (conviction of the defendant), and therefore to me cannot be a viable COA. ... Again, I don't suspect that we will find resolution here.True, not likely to be a success -- but the only real option we have ever had. As for right to a hearing, etc. -- true under US law and and general practice but not really appropriate for a combat area, it's in the 'too hard' and 'negative return for effort expended' boxes. IOW, it would be nice but realistically it would turn into a legal and political bucket of worms that would satisfy no one.

Jason Port
01-16-2009, 01:29 AM
So thanks to all responding to the initial question which as Ken points out, I likely answered part of myself. I was just trying to find some ground truth.

On the other hand, this debate is worthwhile. As was pointed out we have a few "controlling" documents here -

- the Geneva Convention, which governs the rule of war, and which I would suggest has an outdated definition of soldier in the current unconventional fight.

- Hobbes' definition of a nation - or frankly any definition, which defines it not in the context of borders but rather in the context of associated people, whether tribal, religious, or even more loosely as organizations. The Pashtun tribe of Afghanistan and Pakistan are more united than most countries could hope.

- Our laws - within which I would include the Declaration of Independence, our Constitution, or even our regulations for civil and criminal laws. These govern what is right and wrong and what happens when someone violates our code – and further, as WM points out, should act as our guide in defining to what standard of behavior we should hold ourselves.

- The laws of the HN – Naturally, crimes committed in the HN are under the jurisdiction of the HN, but the spirit of the definitions of nation by Hobbes, and of soldier in the Geneva Convention must be examined in this context to determine whether the act is criminal or simply a “military” response to the force of another’s aggression. Fortunately, in nations like Iraq, where their code of laws is 5-10 times older than our own and where the burden of proof is lower, and punishments higher, mean that criminals are punished more severely.

Unfortunately, any two of the four of the above will naturally conflict, in the context of the counter insurgency. Our laws, the laws of Iraq, or A-stan, the belief that a nation is only made of borders, and the belief that the Geneva Convention is still a representation of warfare after 60 years bring the conclusion that we need to re-look at the governance of the SASO/COIN environment, especially in post-conventional conflict.

Again, this is purely philosophical, because when a war is over, and soldiers are returned to their parent nation, they don’t continue their vendetta – they shake off the dirt and attempt to leave the grudge at home. In the case of the insurgent, this is not the case. Surrender by AQ will only serve to create splinter groups and further inspire more acts of terror.

Ken White
01-16-2009, 02:20 AM
...In the case of the insurgent, this is not the case. Surrender by AQ will only serve to create splinter groups and further inspire more acts of terror.Lot of former insurgents all over the world have shaken it off and settled down with only occasional lip service to old grudges.

Recall that AQ is itself a splinter group that will further splinter many ways, it's an amorphous collection of folks who come, sign on -- and die or go or hang around. Some will commit more terrorist acts, some will not. Terror has been a technique for thousands of years, it's always been with us. It surges and recedes, almost cyclically. It isn't going away but it will get down to a bearable level.

As they say -- this too will pass

jmm99
01-16-2009, 05:27 AM
the SOFA, linked here (http://graphics8.nytimes.com/packages/pdf/world/20081119_SOFA_FINAL_AGREED_TEXT.pdf), tells us what we have to do - subpara 4 is most material.


Article 22
Detention

1. No detention or arrest may be carried out by the United States Forces (except with respect to detention or arrest of members of the United States Forces and of the civilian component) except through an Iraqi decision issued in accordance with Iraqi law and pursuant to Article 4.

2. In the event the United States Forces detain or arrest persons as authorized by this Agreement or Iraqi law, such persons must be handed over to competent Iraqi authorities within 24 hours from the time of their detention or arrest.

3. The Iraqi authorities may request assistance from the United States Forces in detaining or arresting wanted individuals.

4. Upon entry into force of this Agreement, the United States Forces shall provide to the Government of Iraq available information on all detainees who are being held by them. Competent Iraqi authorities shall issue arrest warrants for persons who are wanted by them. The United States Forces shall act in full and effective coordination with the Government of Iraq to turn over custody of such wanted detainees to Iraqi authorities pursuant to a valid Iraqi arrest warrant and shall release all the remaining detainees in a safe and orderly manner, unless otherwise requested by the Government of Iraq and in accordance with Article 4 of this Agreement.

5. The United States Forces may not search houses or other real estate properties except by order of an Iraqi judicial warrant and in full coordination with the Government of Iraq, except in the case of actual combat operations conducted pursuant to Article 4.

I don't see any other law which is material to the specific question.

PS: for the two other lawyers here (and any such others of that ilk that happen upon this), they might consider the distinction between what is relevant (in terms of both but for and proximate causation) and what is material - a narrower scope of inquiry addressed to the practical application expressed in the specific question (which also saves bytes).

Bob's World
01-16-2009, 01:23 PM
PS: for the two other lawyers here (and any such others of that ilk that happen upon this), they might consider the distinction between what is relevant (in terms of both but for and proximate causation) and what is material - a narrower scope of inquiry addressed to the practical application expressed in the specific question (which also saves bytes).

...however, anytime I get a chance to link current thinking on foreign policy in general, and the "Long War" in particular back to how we should be thinking based upon our founding principles as a nation I take the conversation in that direction!

(Personally I see this whole detainee issue as just one of dozens of related issues that could all have been avoided if we would just stop trying to control everything on our terms, and instead get back into the role of being an example of what self-determined, popular power can achieve, and help shape an environment that allows other populaces to craft their own destinies.)

jmm99
01-16-2009, 07:54 PM
with this principle:


BW
(Personally I see this whole detainee issue as just one of dozens of related issues that could all have been avoided if we would just stop trying to control everything on our terms, and instead get back into the role of being an example of what self-determined, popular power can achieve, and help shape an environment that allows other populaces to craft their own destinies.)

We'll agree and disagree on specific applications as the principle is reduced to practice - which is a good thing (discussion - thesis, antithesis and synthesis in my simplified "Hegelian" terms).

Yes, you do have a fixation on the Declaration of Independence.

PS: Ken expresses the lead quote principle in terms of Chimps and a 600# Gorilla - as I have demonstrated in another thread.

Bullmoose Bailey
01-21-2009, 06:47 PM
I feel the state of the State may be changing, if you'll pardon the expression.

Logical evolution; City-State to Nation-State to Continent-State

Possible Future Evolution; Nation-State to Micro-State or concurrent governance and the such, particularly in the frontiers regions of Asia & Africa.

We might be dealing in the future with trans-corporeal states, virtual states and religious states wich would in the past have only been labelled fronts/cells/networks.

The statehood criterion will likely change due to communication & easement of access as well as the Enclave method of occupation in different areas by NNAs.

There is of course no good legal framework for attacking these issues. Certainly the new fronts & groups are not Geneva Signatories.

Given these factors, if we continue with "pre-emptive imprisonment" as an, admittedly good, deterrent/collection/spoiling effort, can we ever morally return to summary execution of spies ?

Could any enemy combatant be forced into the category of spy/saboteur?

At the beginning of this action that "forcing" was essentially my best advice. Today I feel the Bush Administration might actually have gained less from housing than from hanging in these terror suspect cases, but what of the cost ?

In past wars non-uniformed combatants were able to be hanged as spies. Is this still the case ?

Morally & legally ?

To what extent has the moral implication driven US procedures ?

Or was it global opinion rather ?

And what of the precedent ?

Is this even a precedent ?

Jedburgh
05-01-2009, 04:45 PM
MR, May-Jun 09: Detention Operations, Behavior Modification and Counterinsurgency (http://usacac.army.mil/CAC2/MilitaryReview/Archives/English/MilitaryReview_20090630_art009.pdf)

Influencing the population is critical in a counterinsurgency, and the detainee population in Iraq represents a particularly salient demographic in that endeavor. Can an Iraqi detainee’s extremist behavior be influenced and modified during detention, thereby making him a lesser threat to coalition forces upon release?1 This question is crucial for Iraq’s future. The lengthy insurgency has resulted in a large number of detainees, and of those who are still being held captive, many have extremist backgrounds. If enough of them can be influenced to adopt positive attitudes toward coalition forces and the Iraqi government, and they return as constructive members of their villages and social networks, the cumulative effects would help tremendously in ensuring long-term national stability......

Bob's World
05-01-2009, 05:32 PM
Jedburgh, this segment highlights one of the most misunderstood and misused words in our efforts to support the COIN operations of others: "Influence"

Invariably it is stated as it is here, as a verb. Something you do to the populace. I mean seriously, how hard is it to influence someone in cuffs standing on the business end of your M-4?

What is needed, and is much much more difficult to achieve is Influence the noun.

Every commander we've ever worked for could influence us, but how many of them possessed influence with you?

The second piece of this is that this is not our populace, this is not our COIN, and these should not be our detainees. Which leads us to the critical point Influence is closely related to Legitimacy. The government that needs to be developing Influence in the eyes of its populace (both insurgent and otherwise) is the host nation government. This builds their legitimacy in the eyes of their populace and reduces the causation for insurgency.

When we as the intervening FID force attempt to build our influence, it robs from the host nation and prolongs the insurgency. It also builds our perception of legitimacy over that host nation government which also prolongs the insurgency and makes the FID force a target of the insurgency as well.

There are many words associated with employing influence:
Order, Direct, Compel, Coerce, Sanction, Intimidate, Scare

There are also many words associated with possessing influence:
Trust, Stature, Prestige, Respect, Credibility, Reputation, Leadership

We need to not only focus on ensuring that every single engagement we execute, be it a raid to take down an HVT or a ribbon cutting ceremony, is designed to preserve the latter in ourselves, and build it in the HN.

I see this as part of our national treasure, a giant "credibility account," if you will. We have been drawing heavily on that account of late, deficit spending in hopes to make it all back at some future date when this GWOT is over. The future is now. It is time to redesign operations around this one point.

In the past if we could deter one man, we could deter a nation, and if we could deter one nation we could prevail. This was the Cold War paradigm.

Now and increasingly we must deter many nations, many leaders, and in fact many populaces to achieve the same degree of security. I see no way to get there except through the retirement of Cold War / GWOT Influencing, and the adoption of a new strategy of building credible influence.

Easily lost, hard to gain. We have a lot of work to do in this regard and we need to get started.

two7sclash
06-15-2010, 03:56 PM
Ladies/Gentlemen

I am a junior captain serving with JTF 435 in Afghanistan. I have been tasked with tracking down detention rates in historical counterinsurgencies to compare with those of Afghanistan. I can find present detention/incarceration levels fairly easily through basic internet research, but I am having a hard time coming up with numbers relating to counterinsurgencies. I don't have a library at hand, so any help the users of this site can provide is greatly appreciated.

I am interested in the Vietnam Conflict (both under French and U.S. prosecution), Malay Emergency, Northern Ireland, French Algeria.

I realize in some cases I may be comparing apples to oranges (i.e. moving 500,000 Malay citizens out of the jungle to eliminate support for the insurgency is not the same as the detention of insurgents in Afghanistan), but I can find a way to normalize for comparison if I can get the raw data.

Thank you for your help,

Jack

jmm99
06-15-2010, 06:55 PM
I've looked at some data re: Vietnam detentions in connection with Pacification in general and the Phoenix Program in particular; but IIRC (articles are on home computer) most were summaries of other databases. I also was looking at them from the legal standpoint, not re: demographics.

I'll take a look tonite and see what if any of the articles would be useful, either for data they present or to sources of original data that might be online. If I'm reading right, you would perfer online sources cuz hardcopies are hard to come by in mountain goat country, ;)

I expect there will be others here who have at least looked at detention in the context of the Malay Emergency, Northern Ireland, French Algeria and French Indochina.

My interest in detention is primarily legal - see this thread, Crimes, War Crimes and the War on Terror (http://council.smallwarsjournal.com/showthread.php?t=4921&page=26).

Regards

Mike

jmm99
06-16-2010, 03:32 AM
This chart is from Tal Tovy, The Theoretical Aspect of Targeted Killings: The Phoenix Program as a Case Study (http://www.jmss.org/jmss/index.php/jmss/article/viewArticle/44) (2009; .pdf link at bottom of abstract), summarizing neutralization of VCI (Viet Cong Infrastructure):

1114

The footnotes show 1972 as a partial year; and Moyer's book as the source for the chart:


66 Until July 1972, when the Phoenix Program ended as part of the process of evacuation of the American forces from South Vietnam.

67 Source: Mark Moyer, Phoenix and the Birds of Prey – The CIA's Secret Campaign to Destroy the Viet Cong, p. 236.

There are a number of online articles that get into Vietnam War detentions arising from Pacification in general and Phoenix in particular; but those tend to be more qualitative than quantitative.

I'll stop now and you can tell us what type of historical data would be useful.

Regards

Mike

two7sclash
06-16-2010, 04:18 AM
Mike - this type of info is useful. It doesn't have to be super sophisticated. This chart told what I needed to know - what type of actors were detained (VCI) and how many were detained. This is a good sample of data for the Vietnam Conflict. Thank you for your help.

Jack

jmm99
06-16-2010, 05:45 AM
Hey Jack

BG (ARVN) Tran Dinh Tho, Pacification (link to .pdf (http://www.counterinsurgency.org/Tran/Tran.htm)) discusses the overall Pacification programs from the South Vietnamese viewpoint.

Compare his figures for VC "ralliers" with VCI "deserters" in the Phoenix post above.

1115

E.g., 47K ralliers in 1969 in the overall Pacification program vs only 4.8K VCI "deserters" included in Phoenix. And, the average annual ralliers work out to about 15K - about 2 military cadres and troops to 1 political cadres and troops. So, these various data sources must be handled with some care.

I'll take a look at a few more.

Regards

Mike

davidbfpo
06-16-2010, 06:32 AM
jack,


I am interested in the Vietnam Conflict (both under French and U.S. prosecution), Malay Emergency, Northern Ireland, French Algeria.

I am sure somewhere there are published official figures for detention in Northern Ireland. It maybe difficult to separate terror-related from "ordinary decent crime", except when there was internment. A starting point is:http://en.wikipedia.org/wiki/Operation_Demetriusand http://cain.ulst.ac.uk/index.html

Figures for Kenya maybe easier to get than Malaya IMHO as there was a book a few years ago on the mistreatment in the internment camps, written by an American and the title eludes me.

Presley Cannady
06-24-2010, 01:38 AM
Assuming...

1. that the vast majority of detainees captured on battlefield are discovered to be worthless as intelligence assets in short order, and
2. detaining fighters doesn't do much to dent the enemy's manpower...

...why bother maintaining them in the first place? Why not release them with some provisions to help them on their way home?

tequila
06-24-2010, 02:03 AM
I was just wondering how many we actually capture on the battlefield anymore, as opposed to in raids?

MikeF
06-24-2010, 02:08 AM
In my last tour as a company commander, I had a 90% detention/retention rate meaning that if we sent someone away,then they stayed there for a long time (minimum of three months). That took a lot of me putting on the lawyer/DA hat to build the case and sending my boys to Baghdad to testify.

With that said, the majority of dudes stayed as guest in our patrol base for 72 hours. For innocents, they had to stay so that they were not killed. For the bad guys, we could not transport them away b/c the only accessible road had over 100 IEDs over a 1 mile stretch. This bought me time to make a decision to detain or let go before air could be scheduled.

I would estimate that 40% over the bad guys that we held and released provided us valuable intelligence. Most of them were kids (15-24 yrs old) that had been told that Americans would torture them. When we didn't, instead gave them 3 hot meals a day and a cot, smoke cigarettes, and bull#### with them about Michael Jordan, Guns and Roses, Britney Spears, and American porn, they started telling us everything that we needed to hear.

The intel captured allowed us to kill the primary bomb maker and 3 of the top 5 al Qaeda deputies in our area, force the main leader to flee, roll up about 15 caches, find 3 rigged houses, get early warning on two impending attacks, and 30 emplaced IEDs.

If we released someone, then they were tracked. Sometimes we would get to know their parents, some converted to double agents, and others went back to doing bad things. Those that went back to bad things were killed.

My only regret is that I let the primary executor of Shiites go. We captured him, did not know who he was, no locals would make a statement other than a verbal "he's a bad man," and we let him go free. I'm still frustated over that one. That dude was beheading his neighbors.

Presley Cannady
06-24-2010, 04:30 AM
Or a bombmaker for that matter?

William F. Owen
06-24-2010, 04:35 AM
Assuming...

1. that the vast majority of detainees captured on battlefield are discovered to be worthless as intelligence assets in short order, and
2. detaining fighters doesn't do much to dent the enemy's manpower...
Very odd and mostly wrong assumptions. Irregular warfare requires effective methods of detention and exploitation. Not having them is a sever disadvantage.


...why bother maintaining them in the first place? Why not release them with some provisions to help them on their way home?
because they will see you as a weak enemy and not fear trying to kill you again.

Presley Cannady
06-24-2010, 06:23 AM
Very odd and mostly wrong assumptions. Irregular warfare requires effective methods of detention and exploitation. Not having them is a sever disadvantage.

1. Are the assumptions that unreasonable? A majority of detainees end up released after vetting, and I've seen little evidence that detention specifically plays a major role in sapping the enemy's strength.

2. In your estimate, how much of battlefield intelligence is sourced from detainee take? Ballpark, 10 percent? 20? 50?


because they will see you as a weak enemy and not fear trying to kill you again.

How does the impression of weakness weigh against, say, the experience of surviving--and not necessarily intact--a firefight against your forces? The state of Shu Han met the enemy brutally while pacifying the Nanzhong rebels, yet released her captives after each fight, presumably on the theory that even insurgents get weary, quit, and bitch about the inevitability of it all to their neighbors and families. I'm curious how well this theory holds up outside of that particular case, but I know of no comparable counterinsurgency in history.

William F. Owen
06-24-2010, 06:39 AM
1. Are the assumptions that unreasonable? A majority of detainees end up released after vetting, and I've seen little evidence that detention specifically plays a major role in sapping the enemy's strength.
Can't speak for A'Stan specifically. If the person captured is a true civilian it will have no impact. If he's a player, why let him go? So as he can kill another of your guys two weeks later?

2. In your estimate, how much of battlefield intelligence is sourced from detainee take? Ballpark, 10 percent? 20? 50?
Cannot speak for A'Stan, but in the case of UK in Cyprus, Kenya, Oman and a few other places, intelligence gained from captured personnel was substantial.
If you cannot detain and interrogate, then you are giving up something normally extremely valuable.

I'm curious how well this theory holds up outside of that particular case, but I know of no comparable counterinsurgency in history.
OK,let me ask, what you do when you capture a guy planting an IED, or in a a cellar building IEDs? Let him go? Just from a point of view of logic, how much sense does that make?

Based on the fact that COIN is actually just Irregular Warfare, it clearly makes more sense to detain than not to detain. We can argue about the status of detainees and on what grounds they get detained, but simply having no detention policy is very clearly something that will make you less effective. Even FM3-24 gets it this bit right... as much as it can!

JMA
06-24-2010, 07:48 AM
In my last tour as a company commander, I had a 90% detention/retention rate meaning that if we sent someone away,then they stayed there for a long time (minimum of three months). That took a lot of me putting on the lawyer/DA hat to build the case and sending my boys to Baghdad to testify.

With that said, the majority of dudes stayed as guest in our patrol base for 72 hours. For innocents, they had to stay so that they were not killed. For the bad guys, we could not transport them away b/c the only accessible road had over 100 IEDs over a 1 mile stretch. This bought me time to make a decision to detain or let go before air could be scheduled.

I would estimate that 40% over the bad guys that we held and released provided us valuable intelligence. Most of them were kids (15-24 yrs old) that had been told that Americans would torture them. When we didn't, instead gave them 3 hot meals a day and a cot, smoke cigarettes, and bull#### with them about Michael Jordan, Guns and Roses, Britney Spears, and American porn, they started telling us everything that we needed to hear.

The intel captured allowed us to kill the primary bomb maker and 3 of the top 5 al Qaeda deputies in our area, force the main leader to flee, roll up about 15 caches, find 3 rigged houses, get early warning on two impending attacks, and 30 emplaced IEDs.

If we released someone, then they were tracked. Sometimes we would get to know their parents, some converted to double agents, and others went back to doing bad things. Those that went back to bad things were killed.

My only regret is that I let the primary executor of Shiites go. We captured him, did not know who he was, no locals would make a statement other than a verbal "he's a bad man," and we let him go free. I'm still frustated over that one. That dude was beheading his neighbors.

I can't follow what you are talking about here. Are these prisoners taken in combat or people picked up at road blocks for during sweeps/searches?

JMA
06-24-2010, 07:54 AM
Assuming...

1. that the vast majority of detainees captured on battlefield are discovered to be worthless as intelligence assets in short order, and
2. detaining fighters doesn't do much to dent the enemy's manpower...

...why bother maintaining them in the first place? Why not release them with some provisions to help them on their way home?

You release them and they are back in the front line before you know it. You detain them until the war is over. You do understand the futility of just releasing captives don't you?

MikeF
06-24-2010, 10:53 AM
How long does it take to replace an IED?

That's actually the first questions that I wanted answered in my PIR (Priority Intelligence Requirements). During the first three weeks, we'd watch from observation posts to get an idea of the enemy's TTP's. Typically, it was a 72 hour process. Day one, dig. Day two, emplace the IED. Day three, wire it and prepare to blow it.

After we understood the enemy's decision making cycle, in their OOODA loop as some would say, we started killing emplacers. I wanted to make it too costly for them to emplace IEDs. The bad guys turned to using young children. We didn't shoot them.


Or a bombmaker for that matter?
They didn't, and my IED problem went away fast. We went from taking 12 attacks a day to only one every three days. The enemy turned to assassination attempts on key local figures and harrasing attacks on regular folks.

MikeF
06-24-2010, 11:00 AM
I can't follow what you are talking about here. Are these prisoners taken in combat or people picked up at road blocks for during sweeps/searches?

This was in a village that I was seizing that served as Al Qaeda's headquarters for my area of operations. After we cleared it, I established a patrol base at the former AQ headquarters. We literally took down the Black AQ flaq and replaced it with an Iraqi one.

Most of the prisoners were picked up during patrols for doing something bad- shooting at us, trying to blow us up, etc. The only time that I did sweeps was to bring four guys in so that I could talk to one source without blowing his cover. We didn't really do checkpoints. Instead, we used blocking positions as part of our attempt to limit traffic in and out of the town. That, and some serious curfews until we could get the violence under control.

Bottom line, the tactical questioning of prisoners was very effective for us.

Uboat509
06-24-2010, 01:20 PM
This doesn't make sense to me. Are you talking about releasing people taken in arms against us because they won't be kept long enough or provide enough intel? How would that be a good idea? Are you seriously trying to put forward the idea that we tell the troops, "Hey, you know the guy who just took a shot at you but you captured him instead of killing him? Well, take his gun and send him home."? Good luck with that.

Ken White
06-24-2010, 02:23 PM
population decline. However, I suspect the 'enemy' KIA count would suddenly climb... :D

Uboat509
06-24-2010, 02:41 PM
population decline. However, I suspect the 'enemy' KIA count would suddenly climb... :D

That is pretty much what I was thinking as well. There would not be outright executions, before someone hysterically suggests that. There would probably be a lot less enthusiasm to put one's self or one's subordinates in harms way to capture bad guys who will then be released. This would be incredibly bad policy and I can't see any government adopting it, least of all ours.

Ken White
06-24-2010, 05:41 PM
prohibited and the ROE would be tightened to try and make it officially difficult. Officers and NCOs would be told to not allow it and most would try to do so. However, Joe tends to ignore Leaders, niceties and rules when his survival is at stake -- as he should when Leaders implement dumb rules...

Presley Cannady
06-24-2010, 06:45 PM
population decline. However, I suspect the 'enemy' KIA count would suddenly climb... :D

As you would expect, preferably with command sanction. My read of Shu Han's expedition to Nanzhong is that ROE was very loose; she burned thousands of insurgents and civilians alive when the fighting took the villages, but quickly turned the survivors loose with some sort of reparation for their hardship. I ask the question to find out to what extent detention and ROE restrictions mutually interact to advance or deter pacifying an insurgent populace. I also get the impression the COIN camp focuses on ROE at the expense of other means in which to assuage enmity within the host population. So, could a more liberal detention policy offset the impact of a more robust firefight?

Presley Cannady
06-24-2010, 07:00 PM
You release them and they are back in the front line before you know it.

General Stone releases 10,000 detainees and only 40 return (http://smallwarsjournal.com/blog/2008/06/major-general-douglas-stone-br/). What I'd like to know is what percentage were dead to rights fighters, and what was the median length of their detention.


You detain them until the war is over. You do understand the futility of just releasing captives don't you?

Well, the hypothesis is that released insurgent can tell his friends, family, and neighbors about the folly of resistance, assuming the message is loud and clear and he gets it. Put another way, a low recidivist rate amongst detainees should correlate to some size web of resources unavailable to the enemy in the future. Given I can only find fragments of evidence from a single case in history, I freely admit this is nothing more than a hypothesis.

Polarbear1605
06-24-2010, 07:26 PM
If I remember the numbers correctly we officially processed 80000+ detainees in Iraq up to 2008 or 9 ? Of that number we release 73,000+. Question: Are our soldiers and Marines really that bad when it comes to IDing the enemy? If you catch a civilian with a rifle he is a combatant and therefore a POW. They belong in the POW camp for the duration. This processing detainees under the Rules of Law is not what the US Military is trained for. Now if you want to release a POW in exchange for information....hmmm...OK...especially, if he can tell me something I don't know. In a insurgency you gotta have a system.

Presley Cannady
06-24-2010, 08:02 PM
If I remember the numbers correctly we officially processed 80000+ detainees in Iraq up to 2008 or 9 ? Of that number we release 73,000+. Question: Are our soldiers and Marines really that bad when it comes to IDing the enemy? If you catch a civilian with a rifle he is a combatant and therefore a POW. They belong in the POW camp for the duration. This processing detainees under the Rules of Law is not what the US Military is trained for. Now if you want to release a POW in exchange for information....hmmm...OK...especially, if he can tell me something I don't know. In a insurgency you gotta have a system.

Don't know what percentage of detainees are noncombatants inadvertently swept up, but my understanding is that the released also include known insurgents vetted by some process to secure low recidivism.

From Chapter 2, Article 10 of Hague Convention IV 1907 (http://www.icrc.org/ihl.nsf/FULL/195)


Art. 10. Prisoners of war may be set at liberty on parole if the laws of their country allow, and, in such cases, they are bound, on their personal honour, scrupulously to fulfil, both towards their own Government and the Government by whom they were made prisoners, the engagements they have contracted. In such cases their own Government is bound neither to require of nor accept from them any service incompatible with the parole given.


Art. 11. A prisoner of war cannot be compelled to accept his liberty on parole; similarly the hostile Government is not obliged to accede to the request of the prisoner to be set at liberty on parole.


Art. 12. Prisoners of war liberated on parole and recaptured bearing arms against the Government to whom they had pledged their honour, or against the allies of that Government, forfeit their right to be treated as prisoners of war, and can be brought before the courts.

Clearly the laws of war anticipate the release of prisoners of war within the duration, and other than where where the laws of a belligerent reciprocate there doesn't seem to be any limit on the generosity with which parole may be offered. More to the point, there doesn't seem to be a restriction at all on releasing detainees with no conditions placed on them whatsoever. That last option is precisely what I'm investigating.

Uboat509
06-24-2010, 08:18 PM
If I remember the numbers correctly we officially processed 80000+ detainees in Iraq up to 2008 or 9 ? Of that number we release 73,000+. Question: Are our soldiers and Marines really that bad when it comes to IDing the enemy? If you catch a civilian with a rifle he is a combatant and therefore a POW. They belong in the POW camp for the duration. This processing detainees under the Rules of Law is not what the US Military is trained for. Now if you want to release a POW in exchange for information....hmmm...OK...especially, if he can tell me something I don't know. In a insurgency you gotta have a system.

That was definitely an issue for us. We would roll a guy up with proof that he was making IEDs or financing a cell or whatever. We would then have to turn him over to the local legal system for processing. If he knew the right people or had the money, he would be out before our after action reports would be done. That was not every time, mind you, but it was often enough.

MikeF
06-24-2010, 08:30 PM
That was definitely an issue for us. We would roll a guy up with proof that he was making IEDs or financing a cell or whatever. We would then have to turn him over to the local legal system for processing. If he knew the right people or had the money, he would be out before our after action reports would be done. That was not every time, mind you, but it was often enough.

I'd simplify that into,

What is the fairness of the host nation judicial system?

Two other factors to consider,

1. How are prisoners treated?

2. Does an environment exist for radicalization at the prisons?

Ken White
06-25-2010, 01:17 AM
As you would expect, preferably with command sanction.In this era, I doubt that, if by sanction you mean the Command encourages more killing and less detention. I believe the reverse would be the case and there would be a top loaded effort to ensure that Troops did not do the logical (to them at the time) thing regardless of 'rules.'
I ask the question to find out to what extent detention and ROE restrictions mutually interact to advance or deter pacifying an insurgent populace.I believe that is quite complex issue and the answer is very much situation -- METT-TC / specific war and location -- dependent. I doubt there's one catch all answer.
I also get the impression the COIN camp focuses on ROE at the expense of other means in which to assuage enmity within the host population. So, could a more liberal detention policy offset the impact of a more robust firefight?I concur with your impression but believe the answer to the question is subject to many variables.

jmm99
06-25-2010, 04:03 AM
was a Rule of Law operation (treating detainees as criminal suspects to be eventually charged and tried under Iraqi domestic law), as Polarbear pointed out in post #18. In effect, our (US) forces acted as quasi-police officers.

Currently, US detainees under the Laws of War (all under Common Article 3, 1949 GCs) are those held at Gitmo and some held at Bagram. So, be careful about applying Laws of War to the Iraq situation - clearly, US Laws of War applied to members of the Iraqi armed forces detained in 2003 during the course of major combat operations (those being EPW under 1949 GC III).

The issue, of course, is whether Task Force 134, Camp Bucca, etc., were effective in at least neutralizing detainees who were released. The 2008 article re: Task Force 134 (http://smallwarsjournal.com/blog/2008/06/major-general-douglas-stone-br/) (cited by PC at post #17) was impressive in its apparent conversion of most all releasees.

But, in following up, I came on this Kings of War article from 1 Jun 2010, US detention ops: whatever happened to COIN ‘inside the wire’? (http://kingsofwar.org.uk/2010/06/what-happened-to-coin-inside-the-wire/):


Around two years ago, several articles and blog-posts appeared detailing the hard work of Gen. Douglas Stone, then the commander of Task Force 134 and in charge of detention operations in Iraq. The attention converged on the change of strategy within the Task Force, previously known mostly for its implication in various prisoner-abuse scandals. Under the command of Gen. Stone, the focus changed toward something more akin to the counterinsurgency principles of separating extremists from moderates, and of working with the latter to curb the influence of the former. To that end, each inmate was given an ‘initial assessment’ to determine his political orientation, religious beliefs and social concerns. The point was to engage with the prisoners’ motivation for violence, both within the prison and upon their release. It emerged that whereas some were hellbent on killing Americans, or other Iraqis for that matter, others were simply disillusioned, angry, acting out of revenge, or had no other prospect than to pick up a gun and become an insurgent.

Based on these assessments, Task Force 134 tailored a range of measures to deal with the inmates on the basis of their individual situation rather than as an undifferentiated whole. These measures included educational courses for those uneducated or of school age, vocational training for lower-risk inmates, religious courses (deradicalisation) for Islamist extremists, and psychological help for particularly traumatised inmates. The detention facilities held 140 reviews daily to assess inmates’ threat level. Those granted release were placed in front of an Iraqi judge to discuss their future and sign a binding pledge to renounce violence. While Gen. Stone said he did not envisage turning ‘radicals’ into ‘choir boys’, the Task Force apparently experienced a significantly reduced return rate (maybe 3-4%). Within the prisons, moderates had even launched a backlash against the extremist elements that had previously used the facilities as insurgency training grounds.

This astonishing work first gained my attention as part of some research I was doing on political reintegration in Iraq (the result of which will soon be released in paper-back). Since then, I admit to having lost the thread somewhat, so I was surprised and dismayed to read in The Guardian last week, that according to Iraqi Major General Ahmed Obeidi al-Saedi, a full ‘80% of prisoners released from US-run Camp Bucca have rejoined terrorists’ (H/T Jeff Michaels). Just a week earlier, another senior Iraq Army officer, Major General Qassim Atta, put forward a similar charge, noting that ‘the majority of the detainees who used to be inside US prisons went back to work in crimes and terrorism’ and that ‘many of them occupied leadership positions in Al-Qaeda’. (more in article, comments and links)

The two articles outlining the May 2010 Iraqi claims on ineffectiveness were:

Iraq prison system blamed for big rise in al-Qaida violence (http://www.guardian.co.uk/world/2010/may/23/iraq-prison-al-qaida-violence). "General claims 80% of prisoners released from US-run Camp Bucca have rejoined terrorists." (Featuring Major General Ahmed Obeidi al-Saedi).

Iraq says prisoners released by US rejoined Qaeda (http://www.google.com/hostednews/afp/article/ALeqM5gWGacfnrSRlEVT9_ssR6BwwcQ8Ag). (Featuring Major General Qassim Atta).

Now, I'm not saying that we should believe the Iraqi generals over our own. I am saying that it would pay here to make haste slowly in suggesting a scenario that is counter-intuitive to many of us.

Regards

Mike

LawVol
04-25-2011, 05:37 PM
Early this morning, Afghan time, 476 prisoners escaped from a prison in Kandahar (http://tolonews.com/en/afghanistan/2506-476-inmates-escape-from-kandahar-jail). The terp in our office says the local talk shows are having a field day with this. The corruption and incompetence of the Karzai government is exposed for all to see.

Another story, says ISAF has arrested or killed 453 "militant leaders" (http://tolonews.com/en/afghanistan/2513-453-militant-leaders-arrested-or-killed-so-far-this-year-isaf) this year. So the bad guys are up 23 so far? Is this indicative of the future here?

Rex Brynen
04-25-2011, 06:04 PM
I have this recurrent image of a "Abdullah McQueen" bouncing a ball off a wall, waiting for the tunnel to be finished (http://www.youtube.com/watch?v=qCgQ3EHBEy0)...

SWJ Blog
04-25-2011, 10:50 PM
The Sarposa Prison Break (2008) (http://smallwarsjournal.com/blog/2011/04/the-sarposa-prison-break-2008/)

Entry Excerpt:

The Sarposa Prison Break (http://www.army.forces.gc.ca/caj/documents/vol_11/iss_2/CAJ_Vol11.2_04_e.pdf) (Kandahar, Afghanistan, 2008) by Captain Nils N. French, Canadian Army, Canadian Army Journal, Summer 2008.


"Prison breaks have been used as an insurgent tactic on other occasions. Examples from the last few years include the release of 23 prisoners from a jail in Yemen in February of 2006, 33 prisoners from a prison in Muqdadiyah, Iraq in March of 2006, 49 prisoners from a prison in Cotabato, Philippines in February of 2007, and 300 freed from a facility in Chattisgarh, India in December, 2007."The Sarposa Prison Break (http://www.army.forces.gc.ca/caj/documents/vol_11/iss_2/CAJ_Vol11.2_04_e.pdf) (Kandahar, Afghanistan, 2008).

jmm99
12-07-2011, 11:29 PM
This thread is a non-identical twin to the thread, The Rules - Engaging HVTs & OBL (http://council.smallwarsjournal.com/showthread.php?t=13239), which deals with the kill aspect of neutralizing the enemy. This thread deals with the capture (detention) aspect of neutralizing the enemy. It also can tie in with the convert aspect of the tri-part neutralization concept (kill, capture or convert).

Two reasons for the thread are (1) the apparent uncertainty within the ICRC concerning the rules of capture and detention in non-international armed conflicts (to the US, Common Article 3 situations); and (2) the definite uncertainty in what US law will be as the President and Congress work toward (or away from) a common detention and trial framework in the National Defense Appropriations Act (NDAA; see Lawfare (http://www.lawfareblog.com/) over the last few weeks).

As to the ICRC's issue, we have from Lawfare, Red Cross Conference Acknowledges “Gaps” in International Humanitarian Law Governing Detention (http://www.lawfareblog.com/2011/12/red-cross-conference-acknowledges-gaps-in-international-humanitarian-law-governing-detention/) (Lawfare 3 Dec 2011; by John Bellinger, who is a partner at Arnold & Porter LLP. Prior to that, he was Legal Adviser at State [2005-2009], and previously was Legal Adviser to the National Security Council (NSC) [2001-2005]):


The 31st Quadrennial Conference of the International Red Cross and Red Crescent closed on Thursday in Geneva with the adoption of a resolution inviting the International Committee of the Red Cross (ICRC) to study whether existing international humanitarian law is adequate, or needs to be strengthened and clarified, as applied to persons detained in armed conflicts. The Quadrennial Conference comprises the 194 States Party to the Geneva Conventions and all the national humanitarian aid societies that are part of the Red Cross and Red Crescent Movement. The resolution, and the ICRC reports that preceded them, constitute a candid and remarkable acknowledgment that — contrary to the adamant assertions of some observers — international law in general, and the Geneva Conventions in particular, do not in fact provide clear guidance to states engaged in detention activities and instead have some legal gaps.

Although the next steps are not clear, it appears likely that the ICRC will convene some kind of working group, in coordination with states, to examine the gaps and how to fill them. In an interview on the Conference website, an ICRC expert says “One possibility would be to negotiate a new treaty on detention issues. But other possibilities would also have to be considered, because some States may not see the need to adopt new treaty law. One of these, for example, would be to use more “soft-law” instruments – i.e. detailed rules that provide guidance without being legally binding. Or we could state more precisely what constitutes good practice.”

The ICRC prepared two important background reports for the conference:

Report on International Humanitarian Law and Challenges of Contemporary Armed Conflicts (http://www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-ihl-challenges-report-11-5-1-2-en.pdf)

Strengthening Legal Protection for Victims of Armed Conflicts (http://www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-strengthening-legal-protection-11-5-1-1-en.pdf)

The ICRC has conducted a two-year internal survey to consider whether the GCs are "relevant" to present-day armed conflicts. I would suggest that the issue is not whether the GCs are "relevant" (a fairly low bar); but whether they are "material" (and if so, to what extent).

In any event, here is Bellinger's assessment of the present ICRC position on a number of key issues:


While international humanitarian law contains detailed rules on conditions of detention in international armed conflicts, this is not the case in conflicts not of an international character, especially those governed by Article 3 common to the Geneva Conventions, the minimum norm applicable in all non-international armed conflicts. There is a need to elaborate specific provisions on the various elements that make up a detention regime with a view to ensuring that detaining parties, whether State or non-State, ensure that those who are in their power are treated humanely.

The relevant rules of customary law are by necessity formulated in general terms, and thus do not provide sufficient guidance to detaining authorities on how an adequate detention regime may be created and operated.

In contrast to the Fourth Geneva Convention rules governing international armed conflicts, there are no international humanitarian law treaty provisions on procedural safeguards for internment in non-international armed conflicts.

Customary international humanitarian law prohibits arbitrary deprivation of liberty, but does not provide criteria for determining what is “arbitrary”. Article 3 common to the Geneva Conventions contains no provisions regulating internment, apart from the requirement of humane treatment. Internment is, however, clearly a measure that can be taken in noninternational armed conflicts, as evidenced by the language of Additional Protocol II, which mentions internment in Articles 5 and 6 respectively, but likewise does not give details on how it is to be organized.

Given the evident challenges faced by persons who might have reason to fear for their safety if they are transferred to another State, it is absolutely necessary to provide legal guidance to detaining authorities in such cases. The lack of legal provisions in the humanitarian law governing non-international armed conflicts suggests that it would be highly advisable to provide for a set of workable substantive and procedural rules that would both guide the actions of States and non-governmental armed groups and protect the rights of affected persons.

Some of the gaps in the existing applicable law require the preparation of new legal solutions.

Bellinger and co-author Vijay Padmanabhan recently addressed a similar set of concerns, “Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law.” (http://www.google.com/url?sa=t&rct=j&q=john%20bellinger%20vijay%20padmanabhan&source=web&cd=2&ved=0CCkQFjAB&url=http%3A%2F%2Fi.cfr.org%2Fcontent%2Fpublication s%2Fattachments%2FBellingerPadmanabhan_Detentions_ April%25202011.pdf&ei=BYvaTp23CYTY0QHz4eyEDg&usg=AFQjCNGEkjxdqdSa2jAmTu9Sbj2h77iYIw)

The most extensive practice in the area of detention lies in the US Courts (primarily the DC Circuit and District judges), as we have seen in individual cases discussed in this thread, Crimes, War Crimes and the War on Terror (http://council.smallwarsjournal.com/showthread.php?t=4921).

Regards

Mike

davidbfpo
12-08-2011, 09:53 AM
Mike,

My apologies I should have mentioned this blogsite before, run by a contact in Belgium, Legal Issues in the Fight Against Terrorism:http://legalift.wordpress.com/

Currently for example it has:
An Interview with Jeremy Sarkin, Chair-Rapporteur of the United Nations Working Group on Enforced and Involuntary Disappearances, on the Study on Global Practices in Relation to Secret Detention

Link:http://projects.essex.ac.uk/ehrr/V8N1/Interview_Sarkin.pdf

jmm99
12-08-2011, 11:52 PM
David, since the blogger is Mathias Vermeulen (http://en.gravatar.com/mathiasvermeulen), Research assistant of Martin Scheinin (http://en.wikipedia.org/wiki/Martin_Scheinin), the UN Special Rapporteur on the Protection of Human Rights while Countering Terrorism, at the European University Institute.

Scheinin, Helsinginpoika, is well-known in the International Law "community" - as an advocate of a "law enforcement" approach to terrorism; that is, that International Humanitarian Law (Laws of War, Armed Conflict) is not directly applicable and that primary recourse must lie in International Human Rights Law. That is also the approach taken by our Mary Ellen O'Connell; as is exemplified in this post by Vermeulen, Last thoughts on the ‘kill-or-capture’ order of Bin Laden:http://legalift.wordpress.com/2011/05/05/last-thoughts-on-the-kill-or-capture-order-of-bin-laden/

I mentioned Scheinin's credentials in this post from a couple of years ago, Martin Scheinin (http://council.smallwarsjournal.com/showpost.php?p=73083&postcount=24).

To make it clear (so that no one will mistake me for what I am not), my position on Violent Non-State Actors is not defined by whether one calls them "terrorists". Below a certain violence level, they are criminals; above that level, they are combatants (albeit probably irregular and not privileged under the GCs). So, unlike Vermeulen, Scheinin and O'Connell (mentioned by me more regularly), I follow the 2001 AUMF and the Law of Armed Conflicts as being available in situations they would find exclusively belonging to "law enforcement". I also see criminal law as a useful adjunct (as I've stated numerous times).

In various cases, these people and I reach the same results; but for different reasons.

Regards

Mike

Entropy
12-09-2011, 01:37 AM
Below a certain violence level, they are criminals; above that level, they are combatants (albeit probably irregular and not privileged under the GCs).

Where is the line and who draws it?

jmm99
12-09-2011, 03:12 AM
from Entropy
Where is the line and who draws it?

In the absence of a One World Government (which is not one of my goals), the duly constituted government in each state decides. That means that one state could decide that the situation is an armed conflict; and another state could decide it is a criminal law situation.

The bottom line is that the decision is political - not legal (despite many in the I Law "community" who would like to be the "Deciders").

The affected Violent Non-State Actor may or may not contest the State's decision. For example, AQ has not disputed that it is engaged in an armed conflict with the US.

Regards

Mike

Entropy
12-09-2011, 03:22 AM
I should have been more specific - I only meant to ask about the US. Is there a legal standard or regime and if so, what is it?

jmm99
12-09-2011, 04:57 AM
based on the various "War Powers" granted the President and Congress under Articles I and II. The 2001 AUMF is an example of Presidential and Congressional joint action.

Article III grants no "War Powers" to the Judiciary; but because of Presidential and Congressional actions and inactions after the 2001 AUMF, the courts have been dragged into the picture.

Regards

Mike

Entropy
12-09-2011, 06:16 AM
I'm not asking whether it's a political question or not. Let me explain in greater detail. You stated:


Below a certain violence level, they are criminals; above that level, they are combatants (albeit probably irregular and not privileged under the GCs).

I have not seen that distinction made before - that a person's status as either a criminal or combatant is determined by "violence level." I understand articles I & II and the AUMF and I have a passing non-lawyer understanding of the various cases and issues - However, none of those, to my knowledge, use "violence level" as the distinguishing factor splitting combatants from criminals.

To put my question another way, where is the threshold between criminal and combatant violence, who/what has the authority to set and/or alter that threshold, and what is the basis for using "violence level" as a threshold in the first place?

jmm99
12-09-2011, 06:35 AM
though I'm not a lawyer anymore, but a "retired gentleman" - to steal a Victor McLaughlin line.

Supply your own definition of what is or is not an "armed conflict" if you don't want to accept my answers. The distinction based on violence level seems obvious to me; but apparently not to you. It's quite possible that I cannot help you. So be it.

Regards

Mike

Entropy
12-09-2011, 02:51 PM
The distinction based on violence level seems obvious to me; but apparently not to you.

Perhaps you should read what I wrote again. I'm not questioning the legitimacy of a distinction based on violence level - actually my questions implicitly assume such distinction exists. Rather, I'm simply asking where the threshold is and who/what sets the threshold. In short, what level of violence does a person have to engage in before they're considered a combatant and not a criminal? If the distinction is to have any meaning then this threshold must be definable. The answer you've given is to suggest that "it's political." If by "political" you mean completely arbitrary or that it's the equivalent of the Justice Stewart pornography standard then I guess that does make sense logically.

jmm99
12-09-2011, 06:36 PM
a shared commonality with Potter Stewart:


I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. :) But I know it when I see it, and the motion picture involved in this case is not that.

from his concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964); or as phrased in small barnyard animal terms:


Suppose you see a bird walking around in a farm yard. This bird has no label that says 'duck'. But the bird certainly looks like a duck. Also, he goes to the pond and you notice that he swims like a duck. Then he opens his beak and quacks like a duck. Well, by this time you have probably reached the conclusion that the bird is a duck, whether he's wearing a label or not.

Richard Cunningham Patterson Jr., while US ambassador to Guatemala (1948-1950), on how to PID a Communist.

One might prefer a more "exact", "legal" definition of, say, "obscenity" - so, here is one:


1.whether the average person, applying contemporary community standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest;

2.whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and

3.whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15 (1973)

Is this test better than Stewart's "know it when I see it" or Cunningham's "like a duck" ? Five justices (Burger, White, Blackmun, Powell, Rehnquist) thought so; but four (Douglas, Brennan, Stewart, Marshall) did not.

Thus, answering your final question:


from Entropy
If by "political" you mean completely arbitrary or that it's the equivalent of the Justice Stewart pornography standard then I guess that does make sense logically

The process (in the US, and elsewhere, for that matter), for determining whether one is "at war", "engaged in hostilities", "involved in the use or threat of the use of armed force" or "engaged in an armed conflict", is not "completely arbitrary". Each person who has an opinion as to a specific situation can usually provide reasons for that opinion.

I'd say the situation (cf., also in defining "insurgency" and "counterinsurgency"), particularly with these "Not Real Wars" (which are very real to the people directly involved in them), is more akin to this:


Once upon a time there was a certain raja who called to his servant and said, "Come, good fellow, go and gather together in one place all the men of Savatthi who were born blind... and show them an elephant." ''Very good, sire," replied the servant, and he did as he was told.

He said to the blind men assembled there, "Here is an elephant," and to one man he presented the head of the elephant, to another its ears, to another a tusk, to another the trunk, the foot, back, tail, and tuft of the tail, saying to each one that that was the elephant.

When the blind men had felt the elephant, the raja went to each of them and said to each, "Well, blind man, have you seen the elephant? Tell me, what sort of thing is an elephant?"

Thereupon the men who were presented with the head answered, "Sire, an elephant is like a pot." And the men who had observed the ear replied, "An elephant is like a winnowing basket.'" Those who had been presented with a tusk said it was a ploughshare. Those who knew only the trunk said it was a plough; others said the body was a grainery; the foot, a pillar; the back, a mortar; the tail, a pestle, the tuft of the tail, a brush.

Then they began to quarrel, shouting, "Yes it is!" "No, it is not!" "An elephant is not that!" "Yes, it's like that!" and so on, till they came to blows over the matter.
...
O how they cling and wrangle, some who claim
For preacher and monk the honored name!
For, quarreling, each to his view they cling.
Such folk see only one side of a thing.

http://upload.wikimedia.org/wikipedia/commons/thumb/4/45/Blind_monks_examining_an_elephant.jpg/800px-Blind_monks_examining_an_elephant.jpg

Udana 68-69. Note that the term "elephant" was expressed from the gitgo; the problem was in defining that "large beast" more exactly.

The Lieber Code, the Hague Conventions, the Geneva Conventions, the Kellogg–Briand Pact (aka "The General Treaty for the Renunciation of War"), and the UN Charter have all confronted the elephant. From them, no bright-line definition for "war" emerges.

Saint Carl recognized the problem:


I shall not begin by expounding a pedantic, literary definition of war, but go straight to the heart of the matter, to the duel. War is nothing but a duel on a larger scale.

On War (Howard & Paret), p.83.

He did not provide a direct answer as to when "the smaller scale duel" becomes "the larger scale war".

A duel involves force (violence), but may or may not be criminal depending on the country and the times. At what point does the aggregate violence go beyond a duel and amount to war ? That is my "political question".

Jean Pictet's Commentary on Convention (III) relative to the Treatment of Prisoners of War, Article 2 (http://www.icrc.org/ihl.nsf/COM/375-590005?OpenDocument) (which introduced the concept of "armed conflict" as being broader than "war") expresses a very low bar for when an "armed conflict" comes into being:


It remains to ascertain what is meant by "armed conflict". The substitution of this much more general expression for the word "war" was deliberate. It is possible to argue almost endlessly about the legal definition of "war". A State which uses arms to commit a hostile act against another State can always maintain that it is not making war, but merely engaging in a police action, or acting in legitimate self-defence. The expression "armed conflict" makes such arguments less easy.

Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries falling within the scope of Article 4. Even if there has been no fighting, the fact that persons covered by the Convention are detained is sufficient for its application. The number of persons captured in such circumstances is, of course, immaterial.

The Convention provides only for the case of one of the Parties denying the existence of a state of war. What would the position be, it may be wondered, if both the Parties to an armed conflict were to deny the existence of a state of war? Even in that event it would not appear that they could, by tacit agreement, prevent the Conventions from applying. It must not be forgotten that the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests. Even if the existence of a state of war is disputed, Article 3 can be applied.

Common Article 3 applies to an armed conflict that is "not of an international character" - which is the basis for the 2001 AUMF.

To repeat Pictet (http://en.wikipedia.org/wiki/Jean_Pictet):


Even if there has been no fighting, the fact that persons covered by the Convention are detained is sufficient for its application. The number of persons captured in such circumstances is, of course, immaterial.

Thus, in his view, the Convention applies even in a non-lethal "cross-border incident". When Common Article 3 (and Additional Protocol II, for those states acceding to it) come into play is a more difficult question.

In conclusion, my "political question" is no better regarded as a "legal question". In our real world, the question (no matter how regarded) is still subject to the "elephant test".

Regards

Mike

jmm99
12-10-2011, 01:25 AM
On 31 March 1999, Yugoslav forces captured three U.S. soldiers conducting a security patrol along the border between the FRY and the former Yugoslav Republic of Macedonia (FYROM). That took place one week after the first bombs were released in Operation Allied Force.

The initial statements by NATO, Pres. Clinton, SecDef Cohen and DoS's Jamie Ruben were confusing at best, and potentially dangerous to the welfare of the three soldiers at worst.

Ken Bacon from DoD cleared the air by declaring that the situation was ruled by the Laws of War (LOAC), and that the three soldiers were PWs under GC III. They were released about a month later via diplomatic efforts.

The CLAMO Lessons Learned from this incident is attached below as a pdf snip, Kosovo Lesson - PW.pdf.

The DoD has consistently taken the position that the Laws of War (LOAC) are the primary rules for all military operations, even for operations that involve no armed conflict. At that, they go beyond Jean Pictet. Clearly his opinion as to cross-border incidents has been accepted in US practice (e.g., Kosovo).

One must keep in mind that while DoD doctrine favors the Laws of War, the Standing Rules of Engagement (in their default "defense of self and others" configuration) are generally restrictive and parallel the US law enforcement rules (and Tennessee v Garner).

Regards

Mike

jmm99
12-22-2011, 07:30 PM
A basic rule is that once you've accepted surrender of an enemy combatant, you do not kill him. Based on the allegations proffered, Ali Musa Daqduq acted contrary to that rule. Here are the articles discussing the basic background:

Daqduq Transferred to Iraq (http://www.lawfareblog.com/2011/12/daqduq-transferred-to-iraq/) (Bobby Chesney, Lawfare):


For further background: those who are interested in getting a better grasp on how we evolved over time from the conventional detention operations accompanying the invasion phase of the war, through to the hybrid detention-or-prosecution system of the middle period, and on to the transfer-to-Iraq-only phase of the post-2008 period, might want to read my article on the topic (Iraq and the Military Detention Debate: Firsthand Perspectives from the Other War, 2003-2010 (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1690513)).

U.S. Transfers Its Last Prisoner in Iraq to Iraqi Custody (http://www.nytimes.com/2011/12/17/world/middleeast/us-transfers-last-prisoner-to-iraqi-government.html?_r=1&hp) (Charlie Savage, NYT):


WASHINGTON — The Obama administration turned over the last remaining prisoner in American custody in Iraq to the Iraqi government on Friday, a move expected to unleash a political backlash inside the United States even as the American military draws closer to completing its exit.

The prisoner, Ali Musa Daqduq, from Lebanon, is suspected of being a Hezbollah operative and is accused of helping to orchestrate a raid in January 2007 (http://www.nytimes.com/2007/07/03/world/middleeast/03iraq.html) by Shiite militants who wore American-style uniforms and carried forged identity cards. They killed five American soldiers in Karbala, Iraq — one in the raid, and four others who were kidnapped and their bodies later dumped by a road.

Hezbollah prisoner held by Iraq faces minor charge (http://www.google.com/hostednews/ap/article/ALeqM5gDTVnpX37Et8A6DMbawOH83MQXow?docId=6367f14f0 53a42958e252c1ddcdb4150) (Abdul-Zahra, AP):


BAGHDAD (AP) — A Lebanese Hezbollah commander allegedly responsible for killing four U.S. soldiers in Iraq will be prosecuted for a lesser charge of illegal entry with a forged passport, Iraqi officials said Saturday.

Ali Musa Daqduq was the last American prisoner in Iraq and was handed over to Iraqi authorities on Friday.

On Saturday, two Iraqi officials said Daqduq will be prosecuted for illegal entry with a forged passport — the only Iraqi charge against him. The charge generally carries a sentence of just over five years in prison. But the officials say an investigative judge will consider U.S. allegations against him. The officials spoke on condition of anonymity because of the sensitivity of the matter.

Now cometh the attributions of fault - why did the deer escape the hunter ? Broadly, says Bobby Chesney at Lawfare, The Daqduq Mess: Apportion Blame Widely (http://www.lawfareblog.com/2011/12/the-daqduq-mess-apportion-blame-widely/) (most all of which involve "political questions"). However, a narrower approach is taken by David Glazier (http://www.lls.edu/academics/faculty/glazier.html) (CDR USN, Ret.), Past and Future Prosecution Options for Daqduq (http://www.lawfareblog.com/2011/12/david-glazier-on-past-and-future-prosecution-options-for-daqduq/) (Lawfare, guest post). His life experience is material:


Before attending law school, Glazier served twenty-one years as a US Navy surface warfare officer. In that capacity, he commanded the USS George Philip, served as the Seventh Fleet staff officer responsible for the US Navy-Japan relationship, the Pacific Fleet officer responsible for the US Navy-PRC relationship, and participated in UN sanctions enforcement against Yugoslavia and Haiti.

His comments (largely of a practical nature) are well considered (JMM: the four headings are mine]:

[War Crimes are Subject to UCMJ Courts-Martial]


I think the analysis of who bears the blame for “the Daqduq mess” overlooks perhaps the most culpable parties – senior U.S. military commanders in Iraq and their staff judge advocates. If it is true that the U.S. had evidence that Daqduq was responsible for actual war crimes — the killing of captured American soldiers – and had physical custody of him, why was he not simply tried for those offenses by a general court-martial sitting in Iraq? Senior military commanders established as general court-martial convening authorities had the necessary statutory authority given that law of war violations are specifically placed within the jurisdiction of general courts-martial by UCMJ article 18 (10 U.S.C. § 818 (http://www.law.cornell.edu/uscode/usc_sec_10_00000818----000-.html)). U.S. forces conducted 95 general and special courts-martial of American personnel in Iraq in 2008-2009, so the necessary assets were available in that theater to do so. Regardless of how the Iraqi insurgency was characterized at the time of these events – international or non-international armed conflict – killing captured individuals constitutes the war crime of murder and should have been validly subject to U.S. trial either on the basis of the victims being American or under the universal jurisdiction generally recognized for war crimes.
["Routine" Combat Killing is Not a War Crime; though It Can Be Murder]


Ironically the U.S. could probably not have made similar claims with respect to the “routine” killing of American service personnel by improvised explosive devices (IEDs) or in actual combat with Iraqi insurgents. If such killings were unlawful, it would only be because the perpetrators were not lawful combatants, in which case they would be denied belligerent immunity and subject to prosecution under ordinary domestic law for their conduct. But with the transfer of governing authority from the Coalition Provisional Authority to the new Iraqi government in mid-2004, U.S. military tribunals lost whatever domestic law authority they might have exercised as occupation law courts up until that time. Daqduq thus presented a unique situation and the staff judge advocates who failed to recognize this and advise their commanders accordingly missed a significant opportunity to see justice done for their fellow soldiers.
[Military Commission Trials Have Statutory Limitations]


I do not believe that the position reportedly endorsed by the Obama administration, trying to bring Daqduq to the United States (or even the conservatives’ preference of Guantánamo) for a military commission trial was legally sound. The Supreme Court has specifically held that convening a military commission is a command function and has only upheld trials convened by responsible commanders during the period of hostilities. (See, e.g., the 1946 Yama$hita decision (http://supreme.justia.com/us/327/1/case.html), 327 U.S. 1 at 10-12.) It is unclear whether the implicit Military Commissions Act provision for a civilian appointee with no command authority to convene these trials will withstand judicial scrutiny; this is just one of the many potential issues with these trials that will undoubtedly require years of litigation to fully resolve if trials resume there in earnest. What is of more concern with respect to Daqduq is that the American withdrawal from Iraq logically terminates that conflict for purposes of legitimate U.S. military law of war jurisdiction, so a military trial anywhere at this point would be extremely problematic.
[The War Crimes Act of 1996 Applies - US District Court Jurisdiction]


There is still a possible solution to this mess, however. The killing of captive Americans clearly violates the War Crimes Act of 1996 (18 U.S.C. § 2441 (http://www.law.cornell.edu/uscode/usc_sec_18_00002441----000-.html)) and can thus be prosecuted in regular Article III courts. It seems clear that Iraq’s primary concern over the past few years has been to reassert its status as a fully sovereign nation and insist on U.S. respect for its legal capacity. The United States should publicly demonstrate respect for Iraqi sovereignty by formally indicting Daqduq in the federal system and then requesting his transfer for prosecution under the 1934 U.S.-Iraq extradition treaty. Given Iraq’s obligation under international law to cooperate in the repression of war crimes, it then has the incentive to demonstrate its standing as a responsible sovereign state by approving the transfer.

Both Polarbear1605 and Yours Truly have made the point in various SWC posts that we (US) should be prosecuting enemy combatants (whether deemed regular or irregular) for war crimes when that opportunity presents itself.

While I agree with Glazier's practice points, I doubt that the lesson that should be learned, will be learned.

Regards

Mike

jmm99
01-03-2012, 03:50 AM
Here is the text of Pres. Obama's statement, President’s Signing Statement on National Defense Authorization Act (http://opiniojuris.org/2011/12/31/presidents-signing-statement-on-national-defense-authorization-act/) (text and brief comment by Marty Lederman; Opinio Juris, 31 Dec 2011) [from presidential statement as to key provisions in Secs. 1021 & 1022):


Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” Second, under section 1021(e), the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are “captured in the course of hostilities authorized by the Authorization for Use of Military Force.” This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa’ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. As my Administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.

It brought on a two-part comment (by folks who are centrists on the left side of that "section" of the political spectrum) - generally favorable to the Obama administration's detention policies, though with reservations if "some bad guy" gets into power.

The NDAA: The Good, the Bad, and the Laws of War–Part I (http://opiniojuris.org/2011/12/31/the-ndaa-the-good-the-bad-and-the-laws-of-war-part-i/) (Marty Lederman and Steve Vladeck; Opinio Juris, 31 Dec 2011); and

The NDAA: The Good, the Bad, and the Laws of War–Part II (http://opiniojuris.org/2011/12/31/the-ndaa-the-good-the-bad-and-the-laws-of-war-part-ii/) (Marty Lederman and Steve Vladeck; Opinio Juris, 31 Dec 2011).

In response, a position further left, Detention Under the NDAA and the Limits of Analogy (http://opiniojuris.org/2011/12/31/detention-under-the-ndaa-and-the-limits-of-analogy/) (Kevin Jon Heller; Opinio Juris, 31 Dec 2011).

Frankly, all three of these authors are based in the premise that there is a brooding, international omnipresence in the sky - call it the Laws of War (or the Law of Armed Conflict, or International Humanitarian Law). And that, that omnipresence controls all national laws on that subject. In some countries, their national "Basic Laws" do require that result (e.g., Israel and Germany); or that result is required by very broad treaties and other interstate compacts (e.g, as in the EU generally).

In the US, the international "laws of war" become applicable only when they are adopted by the constitutionally empowered branch(es) of government, as in the following graphic:

1546

Given the unsettled state of international law with respect to detention (see OP in this thread) - especially in conflicts not of an international character (not between states), looking for a brooding omnipresence in the sky is a fool's mission.

Regards

Mike

jmm99
02-29-2012, 09:07 PM
President Obama's Sec. 1022 Waivers of Military Detention yesterday.

WH 1022 Fact Sheet (http://www.lawfareblog.com/wp-content/uploads/2012/02/NDAA-Fact-Sheet.pdf)
Presidential Policy (http://www.lawfareblog.com/wp-content/uploads/2012/02/NDAA-Presidential-Policy-Directive.pdf)

From the Fact Sheet:


Specifically, as certified in the procedures issued today, the President has determined it is in the national security interests of the United States to waive the military custody requirement of Section 1022 in the following circumstances:

• When placing a foreign country’s nationals or residents in military custody will impede counterterrorism cooperation;

• When a foreign government indicates that it will not extradite or transfer suspects to the United States if the suspects may be placed in military custody;

• When an individual is a U.S. lawful permanent resident who is arrested in this country or arrested by a federal agency on the basis of conduct taking place in this country;

• When an individual has been arrested by a federal agency in the United States on charges other than terrorism offenses (unless such individual is subsequently charged with one or more terrorism offenses and held in federal custody in connection with those offenses);

• When an individual has been arrested by state or local law enforcement, pursuant to state or local authority, and is transferred to federal custody;

• When transferring an individual to military custody could interfere with efforts to secure an individual’s cooperation or confession; or

• When transferring an individual to military custody could interfere with efforts to conduct joint trials with co-defendants who are ineligible for military custody or as to whom a determination has already been made to proceed with a prosecution in a federal or state court.
Depending on how and how often these waivers are used, they could marginalize military detention and military commission trials of AQ members.

jmm99
04-10-2012, 03:45 AM
for your consideration:

Memorandum of Understanding between Afghanistan and the United States on Afghanization of Special Operations on Afghan Soil (http://www.isaf.nato.int/images/20120408_01_memo.pdf).

Memorandum of Understanding between the Islamic Republic of Afghanistan and the United States of America on Transfer of U.S. Detention Facilities in Afghan Territory to Afghanistan (http://www.lawfareblog.com/wp-content/uploads/2012/04/2012-03-09-Signed-MOU-on-Detentions-Transfer-2.pdf).

Lest we forget:

http://www.armyrotc.mtu.edu/images/1LT%20Benjamin%20John%20Hall%20173rd%20ABN%20-%20Small.jpg

First Lieutenant Ben Hall, MTU Class of 2005 and former Cadet Battalion Commander, was killed in action on 31 July 2007 in Afghanistan while fighting with the 2nd Battalion, 503rd Infantry Regiment (Airborne), 173rd Airborne Brigade Combat Team, against Taliban forces on the Afghanistan-Pakistan border.

Regards

Mike

Bob's World
04-10-2012, 08:55 AM
Mike,

Thanks for posting these. This is so long over due. To this point we have held Afghan Sovereignty in complete disregard, demonstrating through our actions the hollowness of our own words when we toss about terms like "Legitmacy" "Sovereignty" "Justice" and "Respect."

Any government elevated into power by an external nation or other source of power is presumptively illegitmate, regardless of any holdings of any offical legal bodies to the contrary. Legality and legitimacy are not the same thing. In our pursuit of effective and efficient defeat of the Revolutionary and Resistance insurgencies in Afghanistan we have to this point placed the very perceptions of the non-Northern Alliance populaces of Afghanistan that are critical for stability far behind what we saw as reasonably necessary authorities and activities to defeat the insurgent threat.

This is what happens when one comes to see their intervention as being "COIN." The host nation, as sovereign, conducts COIN. The intervening party assisting such a government is conducting FID, and fundamental to FID is the subjugation of ones actions to the sovereignty of that host nation. To do other wise is to make a joke of the very government one seeks to support. It places what one needs to be tactically successful secondary to what one needs in order to be strategically successful.

If this were an American colony and all we needed to do was suppress the insurgent fighters so that our puppet government could get on with serving our interests over those of the nation they run for us, then suppression of this nature is good enough. Though that is what the bulk of our COIN doctrine is based upon, that is not our mission in Afghanistan, and that is not "good enough." This is a big step toward getting right with the people of Afghanistan. GIRoA may well fall, but if they fall it will be because they did not deserve to stand. Either way, Afghanistan is finally on a path toward earning true sovereignty and legitimacy in the eyes of not only their own populace, but the entire world,

Now, I do not know if a Northern Alliance judge issuing a warrant in a Kabul court is going to mean F-all to a Pashtun living in the mountains of Uruzgan Province, or the suburbs of Kandahar. We may be applying an American solution to solve an American problem. I suspect a more recognized forum would be a local shura with village, tribal and religious leaders, who then go as a body to the home in question and ask for the offending citizen of their community, backed by appropriate Afghan security forces. One won't likely find very many guys still at home in such an approach, but that in of itself is a metric of how powerful the insurgency to the current government is in much of the country.

We must learn that it is far better to achieve horrible results doing things right than it is to achieve tremendous results doing things wrong. This is a big step in the right direction, but we are losing control of the situation and effectiveness is out the window. Perfect. For those who are thinking, "we may as well pack up and go home," you are not far wrong.

jmm99
04-10-2012, 06:18 PM
My primary foci in this "capture-detain" thread and in its sibling "kill" thread have been on US-owned Title 10 - Title 50 direct actions against HVTs (AQ officers being the type cases). We shall see whether the two 2012 MOUs will impact those particular DAs - e.g., a DA against an AQ officer at a target location in Astan, or a DA launched from Astan soil against an AQ officer located in Pakistan.

What I may not have mentioned here or elsewhere is that Afghanistan has acceded (10 Nov 2009) to the 1977 Additional Protocols I and II of the 1949 Geneva Conventions (link (http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=470&ps=P) and link (http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=475&ps=P)). In short, that placed Astan on the same legal playing field as ISAF (UN, EU, NATO), but on a footing different from that of the US (non-accession to APs I & II). AP II is fully cited in Section 1.4 (page 2) of the Special Operations MOU; and in Section 1.2 (page 1) of the Detention Facilities MOU.

The language used (in Section 5 of the Special Operations MOU - .pdf snip attached) seems very exclusive of direct US participation in, say, "house clearings". These two MOUs remind me of the 2008 Iraq "SOFA"; and, if so, the consequences will probably be similar.

I don't get what you mean by this:


from BW
We must learn that it is far better to achieve horrible results doing things right than it is to achieve tremendous results doing things wrong. This is a big step in the right direction, but we are losing control of the situation and effectiveness is out the window. Perfect. For those who are thinking, "we may as well pack up and go home," you are not far wrong.

- the usual "What we have here is a failure to communicate" - a mutual problem, it would seem. :)

Regards

Mike

jmm99
04-17-2012, 04:55 PM
When it first came out a year ago, I mentioned The Emerging Law of Detention 2.0: The Guantanamo Habeas Cases as Lawmaking (http://www.brookings.edu/papers/2011/05_guantanamo_wittes.aspx#introduction), by Ben Wittes and Bobby Chesney, as a useful (free) resource. At least two of the chapters have been updated since then. You can download the full monograph (1.35MB, 179pp), or individual chapters.

The introduction (link above) summarizes the monograph's methodology and scope:


This report proceeds in several parts. In the first section, we briefly describe the legal background that gave rise to these habeas corpus cases: the Supreme Courts decisions recognizing federal-court jurisdiction over Guantnamo and addressing to a limited extent the contours of a legal process for detainees adequate to satisfy constitutional concerns. We highlight in particular the extent to which the court left the key questions open, a move that in the absence of further congressional action effectively delegated the writing of the rules to the judiciary.

In the sections that follow, we examine the law as it is developing with respect to several of the most important questions concerning the governance of non-criminal, law-of-war-based detentions. In particular, we look at the judges approaches to the following questions:

the burden of proof;

the substantive scope of the governments detention power;

the question of whether a detainees relationship with an enemy organization, once established, is permanent or whether it can be vitiated by time or events;

whether the government is entitled to presumptions in favor of either the accuracy or authenticity of its evidence;

the use of hearsay evidence;

the use of evidence alleged to result from coercion; and

the governments use of a mosaic theory of evidentiary interpretation.
This term of SCOTUS, eight detainee cases have sought review. So far, review has been denied in two cases.

Regards

Mike

Presley Cannady
05-07-2012, 11:26 AM
From WaPo (http://www.washingtonpost.com/world/asia_pacific/secret-us-program-releases-high-level-insurgents-in-exchange-for-pledges-of-peace/2012/05/06/gIQAFfJn6T_story.html?tid=pm_pop):


KABUL — The United States has for several years been secretly releasing high-level detainees from a military prison in Afghanistan as part of negotiations with insurgent groups, a bold effort to quell violence but one that U.S. officials acknowledge poses substantial risks.

As the United States has unsuccessfully pursued a peace deal with the Taliban, the “strategic release” program has quietly served as a live diplomatic channel, allowing American officials to use prisoners as bargaining chips in restive provinces where military power has reached its limits.

We've discussed something similar (http://council.smallwarsjournal.com/showthread.php?t=10698) on the theory that most detainees are useless rank and file--if even that much. So where do folks stand on paroling senior detainees?

jmm99
05-07-2012, 05:11 PM
Whether to "parole" a detainee ("senior" or otherwise) is a matter within the discretion of the Executive Branch, subject to Congressional action where Congress elects to take such action. As such, it is a Political Question.

Parole has been around for a long time. For a pre-9/11 look, see, 1998 Brown, Prisoner of War Parole (http://www.au.af.mil/au/awc/awcgate/law/pow_parole.pdf).

In a civil war, POW questions (including parole and exchange) are complicated by the issues underlying the armed conflict. The Lieber Code of 1863 (http://www.au.af.mil/au/awc/awcgate/law/liebercode.htm) has a lengthy section (119-134) covering parole. That General Order was preceded by the 1862 Dix–Hill Cartel (Wiki (http://en.wikipedia.org/wiki/Dix%E2%80%93Hill_Cartel) and Agreement (http://www.jfepperson.org/cartel.htm)). Despite the outlines provided by these legal sources, the Chronology of the Prisoner of War Exchange and Parole Cartel (http://www.jfepperson.org/pow.htm) amply illustrates that a "one size fits all suit" did not exist.

My view: as a general rule I'd follow Grant (snips from the Chronology link):


April 17, 1864 Grant issues orders to Butler essentially forbidding exchanges unless and until the Confederates agree to treat black troops equally with white, and agree to compensate the U.S. for the early release from parole of the Vicksburg and Port Hudson garrisons.
...
August 18, 1864 Grant writes to Butler, "It is hard on our men held in Southern prisons not to exchange them, but it is humanity to those left in the ranks to fight our battles. Every man we hold, when released on parole or otherwise, becomes an active soldier against us at once either directly or indirectly. If we commence a system of exchange which liberates all prisoners taken, we will have to fight on until the whole South is exterminated."

August 19, 1864 Grant writes to Union Secretary of State Seward, "We ought not to make a single exchange nor release a prisoner on any pretext whatever until the war closes. We have got to fight until the military power of the South is exhausted, and if we release or exchange prisoners captured it simply becomes a war of extermination."
...
Oct. 1, 1864 Lee proposes an exchange with Grant, but the idea founders on the question of black troops.
...
Oct. 15, 1864 Stanton places all prisoner of war issues in Grant's hands, with instructions to "take any steps that you may deem proper to effect the release and exchange of our soldiers and all loyal persons held as prisoners by the rebel authorities."
...
Jan. 21, 1865 Grant informs Stanton that he has given instructions that negotiations be re-opened with a view to resuming a general exchange.
...
Feb. 2, 1865 Grant informs Stanton that he intends to exchange about 3,000 men per week until one side or the other has no more prisoners. The Federals intend to exchange men from states such as Missouri and Kentucky first, to minimize the chances that they could be put back into their units.

but every rule has its exceptions ("METT-TC").

Regards

Mike

davidbfpo
05-07-2012, 06:29 PM
Presley asked:
So where do folks stand on paroling senior detainees?

I thought that the US-run prison at Bagram AFB had been handed over to the Afghans, so this question in the Afghan context maybe academic.

There is a historical parallel in Northern Ireland, during the long-running 'Troubles' and IIRC is still in use today - as some parolees have been recalled to jail, for breaching their conditions. Before the Good Friday Agreement it is well documented, although I have no references to hand, that the para-military convicts were decisive in arguing the case for a ceasefire and making peace.

Somehow I doubt if there is the capacity, let alone the will in Afghanistan to recall parolees. So are we in fact talking about hostages?

Incidentally in both Italy and Spain, with their own internal terrorist campaigns, made extensive use of imprisonment in reaching a political solution and so curtailing the use of violence.

Further back Rhodesia at one point made use of releasing temporarily jailed nationalist leaders, including Robert Mugabe, to enable political talks and at one point released several of them - where upon they left to lead the violent struggle from neighbouring states. That seems to be a more suitable example.

jmm99
05-17-2012, 06:33 PM
So held, Judge Katherine Forrest (SDNY, 16 May 2012), in a 68-page opinion (http://nysd.uscourts.gov/cases/show.php?db=special&id=174), as reported by the Courthouse News Service (http://www.courthousenews.com/2012/05/16/46550.htm):


MANHATTAN (CN) - A federal judge granted a preliminary injunction late Wednesday to block provisions of the 2012 National Defense Authorization Act that would allow the military to indefinitely detain anyone it accuses of knowingly or unknowingly supporting terrorism.

Signed by President Barack Obama on New Year's Eve, the 565-page NDAA contains a short paragraph, in statute 1021, letting the military detain anyone it suspects "substantially supported" al-Qaida, the Taliban or "associated forces." The indefinite detention would supposedly last until "the end of hostilities."
...
Weeks after Obama signed the law, Pulitzer Prize-winning journalist Chris Hedges filed a lawsuit against its so-called "Homeland Battlefield" provisions.

Several prominent activists, scholars and politicians subsequently joined the suit, including Pentagon Papers whistle-blower Daniel Ellsberg; Massachusetts Institute of Technology professor Noam Chomsky; Icelandic parliamentarian Birgitta Jonsdottir; Kai Wargalla, an organizer from Occupy London; and Alexa O'Brien, an organizer for the New York-based activist group U.S. Day of Rage.

They call themselves the Freedom Seven.

This decision is contrary to the logic of the DC Circuit cases interpreting the AUMF; but Judge Forrest is in the 2nd Circuit and is not bound by DC Circuit precedents.

Regards

Mike

davidbfpo
11-26-2012, 01:30 PM
From a student "lurker":
Does anybody know of any documentaries made in which the psychological impacts of terrorism detention/internment are discussed/analysed?

davidbfpo
07-30-2013, 02:20 PM
A small number of threads (eight) found by searching on detention and jail, reviewed and merged here. New title too, thanks to JMM, 'Capture, Detain and COIN: merged thread'.

The catalyst? Creating the new thread 'It's July, time for prison break-outs'

davidbfpo
07-30-2013, 02:33 PM
In the last few days prisoners have escaped from jails in Iraq, Libya and Pakistan - when external attacks have been successful. Those who escape are often the "cream" or hard-core of insurgencies.

For Iraq I read this sombre report, although I've seen one suggestion some escapees have already been recaptured and one that many were awaiting execution:http://www.thedailybeast.com/articles/2013/07/29/al-qaeda-in-iraq-abu-ghraib-jailbreak-a-counterterrorism-nightmare.html

Benghazi, Libya appears to be a jail riot and an external riot:http://www.bbc.co.uk/news/world-africa-23479913

Pakistan, incidentally the second such attack this year:http://www.bbc.co.uk/news/world-asia-23493323 Ahmed Rashid on BBC radio just referred to the prison being informed three days ago of a planned attack and nothing was done in response.

Prison escapes are not unknown, we had them in Northern Ireland and the mainland a few times involving terrorist prisoners / suspects.

Do these incidents reflect official and external inattention, even blindness, to "downstream" aspects of CT - in providing adequate, secure prisons? What is the point of capture if sometimes they escape?

Merged into 'Capture, Detain and COIN: merged thread':http://council.smallwarsjournal.com/showthread.php?t=4358&page=4

jmm99
10-05-2013, 08:01 PM
This week I was reminded that repatriation and parole still play a role in detentions, whether as EPWs (Enemy Prisoners of War) or ODs (Other Detainees). From Stars & Stripes, In rare move, US won't fight release of sick Guantanamo prisoner (http://www.stripes.com/news/americas/in-rare-move-us-won-t-fight-release-of-sick-guantanamo-prisoner-1.245018) (By Ben Fox, AP, October 3, 2013):


MIAMI — The U.S. government has dropped its opposition to releasing a Guantanamo Bay prisoner with severe mental and physical illnesses, apparently conceding the argument that he is far too sick to keep locked up at the U.S. base in Cuba.

In court papers filed late Wednesday, lawyers for the Justice Department said the government would not object to a judge issuing a release order for Ibrahim Idris. The native of Sudan has been held for more than 11 years as an enemy combatant despite being diagnosed as mentally ill soon after his arrival at Guantanamo. ...

Wiki - Ibrahim Othman Ibrahim Idris (http://en.wikipedia.org/wiki/Ibrahim_Othman_Ibrahim_Idris); and Carol Rosenberg, Lawyers argue Guantánamo captive so sick he should go home (http://www.miamiherald.com/2013/07/08/v-fullstory/3489991/mentally-and-physically-ill-guantanamo.html) (8 Jul 2013).

Ironically, since 2009, Idris could simply have been repatriated by an executive order because, as disclosed in the USG's filing (http://www.lawfareblog.com/wp-content/uploads/2013/10/ShowDocument.pdf):


In late 2009, the Executive Branch decided, pursuant to the recommendation of the Guantanamo Review Task Force, that the United States could relinquish custody of Petitioner with certain assurances from a receiving country, including assurances related to the availability of medical care in the receiving country. See Exhibit A, Guantanamo Review Task Force Dispositions Chart.[2]

2. Exhibit A is an excerpt from a publicly disclosed chart reflecting disposition decisions from the Guantanamo Review Task Force process, except that the entry regarding Petitioner on the chart lifts redactions of unclassified information. The remaining redaction in the entry regarding Petitioner protects from public disclosure information that remains classified.

One suspects this case was contested within the Obama administration, as something of a hot potato.

Royce Lamberth (http://en.wikipedia.org/wiki/Royce_C._Lamberth) ("... Captain in the Judge Advocate General's Corps of the United States Army from 1968 to 1974, including one year in Vietnam."), being a crafty dinosaur, simply tossed the hot potato back in the lap of the Executive (Habeas Order (http://www.lawfareblog.com/wp-content/uploads/2013/10/Idris-Order.pdf)):


Petitioner’s unopposed Petition for Writ of Habeas Corpus is hereby granted. The United States shall take all necessary and appropriate diplomatic steps to facilitate Petitioner’s release.

Had this case been opposed and gone to SCOTUS, it would have squarely presented a very important issue: Do the courts have any role in ordering repatriation of EPWs (Enemy Prisoners of War) or ODs (Other Detainees) [this is the contested issue], where their health conditions require their repatriation under Armed Forces regulations [posit this issue as uncontested] ?

The affirmative of this issue was presented (Brief (http://www.lawfareblog.com/wp-content/uploads/2013/10/06-28-2013-Idris-v-Obama-Motion-for-Judgment.pdf)), in a clever argument based on the Laws of War, by Idris' lawyer, Jennefer Cowan of NYC's Debevoise & Plimpton (45 years ago, a solid, "white shoe" international law firm - as contrasted to the more "L.L. Bean hunting boot" shod crew at Sullivan & Cromwell). Ms Cowan's argument is primarily based on DoD regulations, "informed" (not mandated) by the Geneva Conventions.

First, the DoD regulations:


1. Army Regulation 190-8 Requires The Repatriation Of Seriously Ill Detainees

Regulation 190-8 is domestic law, applicable to all branches of the military, which


“implements international law, both customary and codified, relating to EPWs [enemy prisoners of war] . . . and ODs [other detainees] [4] which includes those persons held during military operations other than war.”

4. The term “Other Detainees” is defined as “[p]ersons in the custody of the U.S. Armed Forces who have not been classified as an EPW [enemy prisoner of war] (article 4, GPW), RP [retained person] (article 33, GPW), or CI [civilian internee] (article 78, GC).” Regulation 190-8 Appendix B, Section II “Terms.” Regulation 190-8 requires that Other Detainees be treated as EPWs until a legal status is ascertained by competent authority. Id.

Regulation 190-8 at ch.1, §1(b); see also Al Warafi, 2013 WL 2278201, at *2 (Guantanamo detainee may invoke Regulation 190-8 “to the extent that the regulation explicitly establishes a detainee’s entitlement to release from custody”). With respect to sick and wounded prisoners, Regulation 190-8 provides that:


The following EPW and RP [“Retained Personnel”] are eligible for direct repatriation:
….
(2) Sick or wounded EPW and RP whose conditions have become chronic to the extent that prognosis appears to preclude recovery in spite of treatment within 1 year from inception of disease or date of injury.

Regulation 190-8, ch.3, § 12(l)(2) (emphasis added).[5]

5. Regulation 190-8 also calls for the establishment of a Mixed Medical Commission to determine whether prisoners are eligible for repatriation. Army Regulation 190-8 at ch. 3, §12(a)(2). However, the Mixed Medical Commission need not assess prisoners who are eligible for direct repatriation. Id. at ch. 3, § 12(k)(2). To the best of counsel’s knowledge, no Mixed Medical Commission has been established for the detainees at Guantanamo.

and, as a supplement, the Geneva Conventions:


2. The Third Geneva Convention Requires The Repatriation Of Seriously Ill Detainees

In addition to domestic law, it is appropriate to look to “longstanding law-of-war principles” to assist in determining the rights of Guantanamo detainees. See Hamdi, 542 U.S. at 521; Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006) (“Common Article 3 [of the Geneva Conventions] ... affords some minimal protection ... to individuals associated with neither a signatory nor even a nonsignatory ‘Power’ who are involved in a conflict ‘in the territory of’ a signatory.”). ...
...
The government has taken a similar position:


“Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict.”

Respondents’ Mem. Regarding The Government’s Detention Authority Relative To Detainees Held At Guantanamo Bay, In Re Guantanamo Bay Detainee Litigation, Misc. No. 08-442 (TFH) (D.D.C. March 13, 2009) 1 (Dkt. No. 1689) (attached hereto as Exhibit C); id. 6, 9 (citing to the Third Geneva Convention).

The Third Geneva Convention requires that certain prisoners be repatriated directly to their home countries:


(1) Incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished.

(2) Wounded and sick who, according to medical opinion, are not likely to recover within one year, whose condition requires treatment and whose mental or physical fitness seems to have been gravely
diminished.

(3) Wounded and sick who have recovered, but whose mental or physical fitness seems to have been gravely and permanently diminished.

Third Geneva Convention, art. 110. This repatriation requirement is grounded in the principle that seriously ill detainees “are no longer likely to take part in hostilities against the Detaining Power.” 1 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law: Rules 345 (Cambridge Univ. Press 2005).

Ms Cowan's argument is so close to what I'd make that I'd have a hard time deciding the case if I were a judge. The countervailing argument is that the relief requested would infringe on the President's CinC powers. But, sometimes, a case that can be limited to its specific facts (this one) could be a good vehicle for reminding the "Chief" that someone is looking over his or her shoulder.

Regards

Mike

davidbfpo
11-05-2014, 01:50 PM
An update from The Independent, which raises the issue if detention is used in a COIN / FID campaign, what do you do with the prisoners?

Link:http://www.independent.co.uk/news/world/middle-east/camp-bucca-the-us-prison-that-became-the-birthplace-of-isis-9838905.html

davidbfpo
12-11-2014, 10:39 AM
A long article in The Guardian, based on an interview with an ISIS veteran and entitled 'Isis: the inside story'. Some content is new IIRC.
Link:http://www.theguardian.com/world/2014/dec/11/-sp-isis-the-inside-story

Cross-posted on the current Iraq thread.

davidbfpo
04-06-2015, 03:21 PM
A Soufan Group IntelBrief 'The Wider Threat of Terrorist Prison Breaks' which opens with a reminder:
Breaking their members out of prisons is one of the most effective tactics used by terrorist groups to reenergize and repopulate their ranks
Link:http://soufangroup.com/tsg-intelbrief-the-wider-threat-of-terrorist-prison-breaks/

Since the Yemen is one of the cited examples, I do wonder why no jails have been opened on its islands, in particular Socotra. Somehow I doubt yemeni jails match those in the visiting facilities in the West.

SWJ Blog
08-10-2015, 09:05 PM
It is Time to Reassess How the US Conducts Detention Operations in the Current Fight and the Need to Incorporate our Regional Partners in the Future - Insurgents are Not Traditional Enemy Prisoners of War (http://smallwarsjournal.com/jrnl/art/it-is-time-to-reassess-how-the-us-conducts-detention-operations-in-the-current-fight-and-th)

A SWJ article and here for reference.

SWJ Blog
02-23-2016, 06:21 PM
President Obama on Closing the Guantanamo Bay Detention Center (http://smallwarsjournal.com/blog/president-obama-on-closing-the-guantanamo-bay-detention-center)

Entry Excerpt:



--------
Read the full post (http://smallwarsjournal.com/blog/president-obama-on-closing-the-guantanamo-bay-detention-center) and make any comments at the SWJ Blog (http://smallwarsjournal.com/blog).
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davidbfpo
08-23-2017, 12:57 PM
Catching up on my reading aboard a train was this article in the hard copy journal 'Survival' from IISS by Elizabeth Grimm Arsenault @ Georgetown University. Her slim bio:https://sfs.georgetown.edu/faculty-bio/elizabeth-grimm-arsenault/

The article may appear on her website, others in journals have:https://www.elizabethgrimmarsenault.com/publications

I'd missed current policy is to transfer ISIS detainess to Iraqi or Kurdish custody. The author asks is humane treatment ensured and how will the USA craft a policy if the fight extends beyond the current - mainly - air campaign?