A Matter of Discipline and Secuirity: Prosecuting Serious Criminal Offenses Committed in U.S. Detention Facilities Abroad

• Author: Major Patrick D. Pflaum
• Pages: 05

66 MILITARY LAW REVIEW [Vol. 194

A MATTER OF DISCIPLINE AND SECURITY: PROSECUTING SERIOUS CRIMINAL OFFENSES COMMITTED IN U.S.

DETENTION FACILITIES ABROAD

MAJOR PATRICK D. PFLAUM*

A detainee who has assaulted [Guantanamo Bay] guards on over 30 occasions, has made gestures of killing a guard and threatened to break a guard's arm. . . . [Another detainee] told the MPs that he would come to their homes and cut their throats like sheep.1

1. Introduction

   It was 1 November 2000 at the Metropolitan Correction Center in New York City.2 Prison Guard Louis Pepe was escorting Mamdouh Mahmud Salim from a recreation room back to his prison cell.3 Salim was suspected as an aide to the notorious Osama Bin Laden and had been meeting with his attorneys.4 With the assistance of his cellmate, Khalfan Khamis Mohamed, Salim overwhelmed the almost 300-pound Pepe, threw hot sauce in his eyes, tied him up, and demanded the keys to the cells.5 When Pepe refused to give them the keys, Salim stabbed Pepe in

   the eye with a comb that had been sharpened into a knife-like shank.6

   The weapon sank three inches into Pepe's eye socket.7 Mohamed and Salim then began to beat him severely.8 Thinking that they had killed him, Salim and Mohamed then used Pepe's own blood to paint a cross on the guard's torso.9 Pepe spent twenty-eight months in the hospital and he is permanently injured.10 He has no left eye and he has only 40% of the vision in his right eye.11 He is significantly paralyzed on the right side of his body and needs therapy to help him regain his ability to speak.12

   The attack on Louis Pepe is not the only instance where terror suspects have assaulted their guards while in the custody of the United States. Department of Defense (DOD) reports show that instances of violence are somewhat commonplace, even if not as severe as the attack on Louis Pepe.13 Guards at Guantanamo Bay routinely endure acts of violence, including punches, scratches, and stabs.14 Guard personnel have seized weapons of all types, including "a billy club fashioned from MRE wrappers, an intricate trash-bag garrote, and a variety of crude shanks."15 Detainees assault guards with other "weapons" as well. In 2006 alone, guards endured more than 400 assaults with bodily fluids, including urine and feces.16 In May of 2006, the detainees at Guantanamo Bay drew media attention when they rioted in the detention facility.17 One prisoner staged a suicide attempt while several others made the floor slippery with human waste and soapy water.18 As the

   guards responded to prevent the suicide, the detainees "assaulted the guards with broken light fixtures, fan blades, and bits of metal."19 A

   five-minute fight ensued and, while no guards were hurt, six detainees suffered minor injuries.20 In January of 2008, during the sentencing proceedings for his terrorist activities, it was revealed that Mohammed Mansour Jabarah had plotted to kill his law enforcement handlers while held in a federal facility at Fort Dix, New Jersey.21

   Salim's assault on Louis Pepe occurred in a federal facility and he was tried, convicted, and sentenced in federal district court in New York.22 But what if the incident had happened at the detention facility at Guantanamo Bay, and the victim had been one of the guards there? What if a detainee had killed a guard during the May 2006 riot? What if a detainee murdered a fellow detainee for testifying against him in a military commission or for providing incriminating information to an interrogator? With a population of about 290 detainees now at Guantanamo Bay23 and "increasing displays of defiance from the prisoners," a serious issue arises: how should incidents of serious post-capture criminal misconduct be prosecuted to ensure the safety, the good order, and the discipline in the detention facility?24

   Under current U.S. policy, pre-capture offenses-that is, those offenses that led to the detention of these individuals in the current War on Terror-will be tried by military commission under the Military Commissions Act of 2006.25 The prosecution of post-capture

   misconduct, however, is an open issue. From the Salim case, it appears that detainee misconduct in a detention facility on U.S. soil would be handled in federal district court.26 Under the Uniform Code of Military Justice (UCMJ) and the Military Commissions Act of 2006, enemy POWs and "lawful enemy combatants" may be tried by court-martial for offenses that they commit while detained.27 At this point, though, there is no clear mechanism for prosecuting serious misconduct in the Guantanamo Bay detention facility when committed by a class of detainees termed "alien unlawful enemy combatants."28 As there is no definitive legal mechanism for prosecuting these post-capture offenses, three options exist for prosecuting post-capture misconduct by alien unlawful enemy combatants in U.S. detention facilities abroad. Those three options are: military commissions, courts-martial, and U.S. federal district courts.29 This article analyzes these three options and proposes a forum that is most appropriate for the prosecution of these offenses.

   In analyzing this issue, Part II provides the fundamental background principles. This part first traces the historical development of international law with respect to handling and prosecuting crimes committed in prisoner of war (POW) camps. Part II then outlines the current U.S. policy governing the classification of detainees and concludes with a discussion of the critical distinction between offenses that require camp disciplinary procedures and offenses requiring judicial punishment. Part III provides an overview of the three primary options available for prosecuting misconduct in detention facilities, outlining their jurisdictional foundations and describing their procedural

   highlights. Finally, Part IV proposes one particular forum after considering the quality of the jurisdictional reach, the practical implications of the forum, and the important policy considerations in prosecuting post-capture detainee misconduct in each forum.

   Of the three options that exist, should the need arise, trial by court-martial offers the most attractive forum for the prosecution of post-capture criminal misconduct. However, based on the current state of U.S. detention policy, it is trial by military commission that provides the most secure means to prosecute those serious offenses committed by alien unlawful enemy combatants held in U.S. detention facilities. A complete resolution of the question, however, requires a statutory solution from Congress that establishes more airtight jurisdiction over crimes in a detention facility when committed by alien unlawful enemy combatants. With more detainees becoming depressed, despondent, and desperate, government officials, commanders, and Judge Advocates must be prepared to try these cases as necessary to maintain good order and discipline in the confinement facility, and to punish those detainees who commit serious criminal offenses in U.S. detention facilities abroad.30

2. Fundamental Principles Governing the Prosecution of Detainees

   In selecting the most appropriate forum for prosecuting alien unlawful enemy combatants for post-capture misconduct, some fundamental background principles are critical to framing the issue. First, international treaties have continually developed the law of war over the past one hundred years, and the treatment of those in detention has always occupied a significant portion of these treaties.31 Second, in the ongoing War on Terror, the United States has determined that certain detainees do not qualify as "prisoners of war," as defined in Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, and therefore determined that these individuals lack the

   protections afforded to POWs under international law.32 The current term for these individuals who do not fit the definition of POW is "enemy combatant," and the classification of detainees has significant bearing on the rights to which they are entitled, including how their misconduct may be tried.33 Third, if an individual commits a crime while detained, not all offenses justify punishment imposed through a judicial process.34 Some minor offenses may warrant basic camp disciplinary procedures. In an effort to provide the fundamental background principles for prosecuting post-capture misconduct by those who are alien unlawful enemy combatants, this part will trace the historical development of the law regarding the prosecution of misconduct by POWs, outline the current U.S. policy concerning the status of those detained at Guantanamo Bay, and describe the principles that distinguish those offenses that warrant a judicial disposition from those that warrant a minor disciplinary disposition.

   1. Historical Development of the Criminal Punishment of Prisoners of War

      From the beginning of the formal regulation of modern warfare, the drafters of the treaties that govern warfare have recognized the importance of maintaining good order and discipline in POW camps. General Orders No. 100 (Lieber Code), drafted in 1863 during the U.S. Civil War by Francis Lieber, is generally recognized as the first codification of the law of modern warfare.35 Article 75 of the Lieber

      Code provides that "Prisoners of War are subject to confinement or imprisonment such as may be deemed necessary on account of safety."36

      Article 77 mandates that, while an escape attempt is not a crime, a conspiracy to escape that is discovered "may be rigourously punished, even with death; and capital punishment may be also be inflicted upon prisoners of war discovered to have plotted rebellion against the authorities of the captors, whether in union with fellow prisoners, or other persons."37 In his classic treatise on military law, first published in 1886, Colonel William Winthrop acknowledged that "[p]risoners of war must conform to the law, regulations and orders...