Capture, Detain and COIN: merged thread

[Jason Port]

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]

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]

HRW, 14 Dec 08: The Quality of Justice: Failings of Iraq’s Central Criminal Court

....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 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 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]

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]

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]

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]

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]

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.