Detention & Guantanamo

Military Detention of Captured ISIL Members: Umm Sayyaf as Prototype?

By Robert Chesney
Monday, June 8, 2015, 6:18 PM

In a special operations raid last month targeting a key ISIL figure in Syria, U.S. forces came away with that rarest of things: a prisoner. Abu Sayyaf's wife, Umm Sayyaf, was taken into custody during the raid, and brought to Iraq for questioning--in U.S. custody--by members of the HIG (the High Value Detainee Interrogation Group, an interagency entity created many years ago as a vehicle for bringing our best interrogation expertise to bear in situations like this).

This raised a question: Would Umm Sayyaf become the first new instance of U.S.-administered, long-term military detention in many years? Or would we instead soon either turn her over to Iraqi custody or even bring her to the United States for trial?

Well, it's been several weeks with no public word regarding subsequent developments. We got an indirect update yesterday, however, in an article on the intelligence benefits of the SOF raid in Syria, via Eric Schmitt of the New York Times. His article makes passing reference to Umm Sayyaf, quoting an unnamed official for the proposition that she has in fact been talking to her interrogators. Of course this tells us nothing about what the next step will be, and it is even possible that she has quietly been handed over to the Iraqis already. But the story does at least imply that after several weeks a decision has not yet been reached regarding her long-term disposition....and at some point, this really does amount to a decision to employ military detention, albeit with broadcasting the point.

From a legal perspective, the administration should have no trouble with this policy. After all: (i) the administration has long asserted--and continues to assert in GTMO habeas litigation--that there is authority to detain members of an AUMF-covered group for the duration of hostilities in such circumstances; (ii) it appears from media reports that the government views Umm Sayyaf as a member of ISIL in her own right; and (iii) the government has suggested that Iraq does not object to the use of this authority on its territory.

The real obstacle here, of course, is not law (notwithstanding that there are those who deny that LOAC entails this form of detention authority in a NIAC setting). Rather, it seems likely to me that the administration has long since determined that long-term military detention in U.S. custody is an option to be avoided whenever a reasonable alternative exists, in order to avoid an array of negative impactins including domestic political costs, international diplomatic costs, legal friction, friction with the host-nation (where we maintain custody abroad), and enhanced hostility from local populations. And yet, as the Umm Sayyaf example apparently illustrates, the benefits of intelligence exploitation--and perhaps also concerns about the treatment a captive would receive if turned over to a foreign partner--will at times compel the United States to reconsider, at least for the short-to-medium term.

One suspects that in a few more weeks, or maybe a few months, Umm Sayyaf will in fact be handed over to Iraq. That is, we will employ detention for as long as we think the benefits of administering it ourselves outweigh the potential frictions. Such an approach makes some sense, so long as the scale is small and we can manage such an arrangement without constructing actual detention facilities in-country. But if we capture other ISIL figures--and Schmitt's story certainly undescores why we might be wise to try to do so--it will get increasingly hard to manage this situation in such a subtle way. If and when the United States begins taking a more active role in conducting boots-on-the-ground raids against high-value targets, this issue will likely become pressing.