Indefinite detention under the laws of war.

• Author: Jenks, Chris

INTRODUCTION

While campaigning for the Presidency in 2007, then-candidate Barack Obama stated, "I have faith in America's courts and I have faith in our JAGs. As president, I'll close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists." (1) Almost immediately after entering office, now-President Obama issued three Executive Orders intended to carry out these campaign promises. (2)

The first was Executive Order 13491, Ensuring Lawful Interrogations. (3) This order required that all interrogations by any federal "officer, employee, or other agent of the United States Government" (4) comply with Army Field Manual 2-22.3 (5) and Article 3 of the 1949 Geneva Conventions. (6) The second was Executive Order 13492, Review and Disposition of Individuals Detained At the Guantanamo Bay Naval Base and Closure of Detention Facilities. (7) This order created two task forces to conduct "a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantanamo, and of whether their continued detention is in the national security and foreign policy interests of the United States and in the interests of justice," (8) and ordered the terrorist detention facility at Guantanamo be closed within a year. (9) President Obama stated that the task forces were intended to provide him "with information in terms of how we are able to deal [with] the disposition of some of the detainees that may be currently in Guantanamo that we cannot transfer to other countries, who could pose a serious danger to the United States." (10) The third was Executive Order 13493, Review of Detention Policy Options. (11) This order also established a task force, this one to provide an overall review of the U.S. detention policies and then issue a report within 180 days. (12)

In response to Executive Order 13492, the two task forces issued their respective reports. One of the task forces, charged with reviewing the conditions of confinement at Guantanamo, (13) issued what is commonly referred to as the Walsh Report. (14) The other task force was charged with "select[ing] lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice" for the disposition of those detainees for whom neither transfer nor prosecution was envisioned. (15) This task force recommended that "nearly 50 of the 196 detainees at the U.S. military prison at Guantanamo Bay, Cuba, should be held indefinitely without trial under the laws of war." (16) The recommendation for indefinite detention governed "under the laws of war" is significant. Though there are numerous proposals for eventual disposition of the Guantanamo detainees, (17) some of which contemplate various forms of legal detention and confinement, (18) none have proposed indefinite detention under the laws of war, as recommended by the task force. (19)

The law of war, or law of armed conflict (LOAC) as it is often called and set forth in both customary and conventional law such as the Geneva Conventions, provides a clear framework for detention for the duration of hostilities. (20) Historical practice has generally involved detention for much shorter periods of time than many at Guantanamo have already been detained. There are some notable exceptions, however, including Israel, (21) Malaysia, (22) Algeria (23) and Morocco, (24) where fighters were detained for extended periods of time, including more than twenty years in the case of Morocco. (25) However, the vast majority of detentions have been for much shorter durations. Surprisingly, considering the number of armed conflicts that have involved detention, there is no common international practice concerning long-term or indefinite detention upon which states may rely.

For those at Guantanamo held after criminal prosecution, or for whom prosecution won't occur, and who have unsuccessfully petitioned for a writ of habeas corpus (or not submitted a petition at all), the question then becomes, assuming that long-term and potentially indefinite detention of unlawful enemy combatants (or unprivileged enemy belligerents) (26) will be governed by the law of war, what should that detention look like? This Article argues that the basic provisions and safeguards currently extant in the LOAC are sufficient to establish a legitimate indefinite detention paradigm. Though many of these provisions are under-utilized or ineffective in the current detention framework, the current structure could be adapted to provide a LOAC detention model that accounts for a contemporary view of individual rights, protections, and privileges. Such an adapted paradigm would be appropriate for the indefinite detention of the up to fifty detainees designated by the U.S. government to be held at Guantanamo, and would provide appropriate safeguards and ensure the overall security necessary for that detention until the conflict is over or until the detainees no longer pose a security risk.

Here, there is no intent to "put [enemy aliens] in a more protected position than our own soldiers." (27) Rather, this analysis is designed to demonstrate that the LOAC rules on detention are sufficiently flexible and comprehensive to provide worthwhile and meaningful individual protections the Administration can apply to those who are detained indefinitely.

Part I of this Article reviews the history of LOAC detention and the formulation of the current framework. Part II discusses the law that applies to detention generally and sets the stage for the analysis in Part III of specific LOAC provisions that are either under or ineffectively utilized in the current detention paradigm. If properly applied, these provisions provide a model for indefinite detention under the LOAC. Finally, we propose a revised framework for LOAC-based indefinite detention that accounts for a contemporary view of individual rights and protections.

1. THE LAW OF ARMED CONFLICT DETENTION PARADIGM

   The power to detain has always been considered incident to the conduct of military hostilities. (28) This principle was confirmed in modem practice in the Hamdi case before the United States Supreme Court. (29) This section will first provide a brief historical perspective on detention and then analyze the current LOAC detention paradigm.

   1. History

      From the earliest records of armed conflict, captives have been at the mercy of their conqueror. Though there are examples of captors who showed mercy, (30) this was not considered a requirement by law or custom. In the medieval world, rich knights or nobles were often detained as a means of extracting ransom. (31) With the emergence and expansion of professional armies, detaining captives as a means of facilitating prisoner exchanges became more common, (32) but was still not recognized as a legal or customary requirement. The Lieber Code, which was not only used in the American Civil War but also had a great impact on European law of war practice, reflects the changing attitude toward victims of armed conflict. (33) This change is also reflected in the first Geneva Convention of 1864 where treatment of detainees first took on a legal obligation. (34)

      This legal obligation continued to be enshrined and expanded in various instruments until it achieved full fruition in the 1949 Geneva Conventions and the subsequent Additional Protocols. Many of the specific elements of the detention regime will be analyzed below in Part II, but it will suffice to say here that the Geneva Conventions established two different detention regimes--one for members of the armed forces and one for civilians. (35)

      By the simplest reading of the Geneva Conventions, members of the armed forces were detainable at all times and could be held, with few exceptions, until the end of hostilities. (36) Their detention was based on their status as members of the armed forces of the opposing nation (37) and was designed to prevent them from returning to the fight. (38) In contrast, civilians could only be detained if they presented an imperative security risk. (39) Their status was to be reviewed regularly, at least every six months, to determine if the civilian detention needed to continue. (40)

      The detention regime detailed in the Geneva Conventions is widely accepted by states and is now considered customary international law. (41) This regime was in place when al-Qaeda attacked the United States on Sept. 11, 2001. Furthermore, the provisions of the Geneva Conventions concerning detention had been implemented by the U.S. military in Army Regulation 190-8. (42)

   2. Current LOAC Detention Paradigm

      The start point (and possibly the end point according to the Executive Order 13492 Task Force which considered disposition) for the current paradigm is the Authorization for the Use of Military Force (AUMF), passed by Congress following the September 11th attacks. (43) Under the AUMF the President has broad power to detain:

      [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (44) The constitutionality, and scope, of the AUMF's grant of detention authority was first tested in 2004 in Hamdi v. Rumsfeld. (45) In a plurality opinion, the Court clarified that there are some narrow circumstances in which a broad power to detain is necessary:

      [I]t is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in...