Regular readers know that I've held the position that both detention and prosecution are viable options in dealing with members of irregular forces that are in effect waging special operations warfare against the US.

As a practical matter, persons arrested within the US are usually better handled via Federal crimiinal prosecutions (or if soldiers such as MAJ Hasan are involved, via UCMJ courts-martial). On the other hand, persons detained in the course of military operations are usually better handled as military detainees - as to which, Gitmo is not the only model.

I've not fallen in love with prosecutions of those military detainees (KSM is a good example) whether in Federal courts (the apparent love of the left) or before military commissions (the apparent love of the right). What follows are some resources that key in on the future of military detention of irregular combatants - that is, persons who are mermbers or material supporters of a combatant Power in a non-international armed conflict.

Here is a series of brief opinion pieces (from earlier this month) that generally endorse long-term military detention as a better solution than either civilian court or miltary commission trials, but differ as to the ultimate allowable term of detention.

Don’t Try Terrorists, Lock Them Up (8 Oct 2010, NYT Op Ed)

THE Obama administration wants to show that federal courts can handle trials of Guantánamo Bay detainees, and had therefore placed high hopes in the prosecution of Ahmed Khalfan Ghailani, accused in the 1998 bombings of American embassies in East Africa. On Wednesday a federal judge, Lewis Kaplan of the United States District Court in Manhattan, made the government’s case much harder when he excluded the testimony of the government’s central witness because the government learned about the witness through interrogating Mr. Ghailani at a secret overseas prison run by the C.I.A.

Some, mostly liberals and civil libertarians, applauded the ruling, saying it showed that the rule of law is being restored. But many conservatives denounced it as proof that high-level terrorists cannot reliably be prosecuted in civilian courts and should instead be tried by military commissions.

The real lesson of the ruling, however, is that prosecution in either criminal court or a tribunal is the wrong approach. The administration should instead embrace what has been the main mechanism for terrorist incapacitation since 9/11: military detention without charge or trial.

Military detention was once legally controversial but now is not. District and appellate judges have repeatedly ruled — most recently on Thursday — that Congress, in its September 2001 authorization of force, empowered the president to detain members of Al Qaeda, the Taliban and associated forces until the end of the military conflict. ....
The case mentioned ("most recently on Thursday") is the DC District decision against Toffiq Nasser Awad Al-Bihani (by Judge Reggie Walton).

Terror detentions deserve time limits (10 Oct 2010, WP Op Ed)

American soldiers in Afghanistan capture a Taliban fighter who has launched a rocket-propelled grenade at them. Few people would think that the only answer is to bring him to the United States for a criminal trial. The military's primary battlefield mission is not collecting evidence for prosecution, nor should it be.

If the United States is going to neutralize the threat that the Taliban soldier represents, however, some system of detention, as in more traditional wars, is inevitable. The legal uncertainty about who can properly be put into this system -- Must a detainee have been captured on "the battlefield"? How broad is "the battlefield"? How directly involved in hostilities must a person have been? -- should not obscure this central fact.

Facing this reality, Jack Goldsmith argued on this page ["A way past the detention gridlock," Sept. 10] that Congress and the president should work to put our detention system on stronger moral and legal footing. But Goldsmith did not address the hardest problem in doing so: the specter of indefinite detention. Unless that specter is removed, no system of detention is likely sustainable. ....
At Lawfare, added comments re: when military detention ends or should end, in Problems with Military Detention (Goldsmith) and Problems with Military Detention (Cont’d.) (Wittes).

From 2005 Harvard Law Review, Bradley & Goldsmith, Congressional Authorization and the War on Terrorism; and from 2009 Brookings, by Wittes, Designing Detention: A Model Law for Terrorist Incapacitation (direct pdf).

These are some futuristic views of military detention policies based generally on our (US) experience with the 2001 AUMF (Authorization to Use Military Force).

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Other Than Gitmo Models

Military Detention in Iraq: Understanding the Detention Policy Cycle for Expeditionary Deployments, and Exploring the Relationship Between Law and Practice in the Field, by Robert Chesney (from 13 Oct 2010 Lawfare):

Ever notice that the debate over detention law and policy rarely makes reference to the American experience in Iraq over the past seven years? Ever wonder what lesssons, if any, that experience has to offer? If so, you might want to take a look at my forthcoming article “Iraq and the Military Detention Debate: Firsthand Perspectives from the Other War, 2003-2010” (Virginia Journal of International Law, Volume 51).

Among other things, I describe a cycle of detention policy in the context of expeditionary deployments, one that begins with an embrace of conventional and highly-discretionary military detention but that shifts over time in the direction of heightened screening procedures and, eventually, a primary or even exclusive emphasis on the host nation’s criminal justice system. This process is nearing completion in Iraq, and is in mid-stream now in Afghanistan. Notably for both cases, and for any future expeditionary deployments, the cycle ultimately entails the loss of control over the physical facilities on which U.S.-operated military detention depends–meaning that the current availability of facilities like the Detention Facility in Parwan (DFIP) should not be viewed as a long-term solution to the problems associated with shuttering GTMO while still wishing to maintain the capacity to detain individuals for the long-term outside the United States. .. (full abstract of article follows) ....
Quite a bit more about both OIF and OEF detention policies can be found in the Lessons Learned series at CLAMO - OEF/OIF Vols. I & II, and Forged in the Fire.

For a 2010 update on Astan (Bagram) detention procedures, see Jeff A. Bovarnick, Detainee review boards in Afghanistan: from strategic liability to legitimacy (Army Lawyer, June, 2010). This is part of the June 2010 International and Operational Law Edition (probably less time consuming to download the entire pdf than the 72 pages from Find Articles).

All these are a serious overload in reading material. The emerging US law of military detention of irregular combatants is doing just that - emerging. So, we have lots of suggestions to consider. In a decade or two, we should have all of this down much better.

Regards

Mike