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
Wednesday, October 13, 2010, 9:57 AM

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 lessons, 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.

There's much more in the paper, including extended illustrations of the remarkable degree to which the U.S. military adapted over time to the evolution of detention law and policy in Iraq, as seen through the lens of both individual perspectives (suffice to say that by 2008 attitudes regarding the importance of collecting better evidence at the point of capture had significantly shifted for at least some servicemembers, both because of a perception that this was necessary to make detention "stick" and that it yielded better intelligence) and organizational structures (especially through the adoption of structures that ensured better pre-capture planning and coordination).  The full abstract, highlighting both the key lessons learned and the unusual methodology underlying the paper (I relied in significant part on a huge trove of after-action reports, supplemented by the views of various JAG and non-JAG servicemembers), appears below.  Criticisms or comments are most welcome.

The post-9/11 debate regarding the law and policy of military detention is shot through with flawed assumptions. It tends to assume, for example, that if the factual and legal predicates for using military detention without criminal charge can be established in the first instance, then for good or ill that model can be sustained over the long term. It tends to assume that evidence-gathering and other activities associated with criminal prosecution are alien to military training, doctrine, practice and culture. It tends to assume a sharp and exhaustive categorical distinction between the realm of criminal law enforcement and the realm of military detention without criminal charge. At the highest level of generality, it presupposes that the legal framework applicable to detention is relatively static, that it is not responsive to changing strategic circumstances. And not coincidentally it does all of this through the lens of Guantanamo, focusing relentlessly on the peculiar circumstances of slightly less than 800 individuals who have been detained there over time.

No one doubts that detention at Guantanamo matters, or that it gives rise to complex questions of law and policy. But some perspective is in order. The U.S. military has been deployed to Iraq for more than seven years, and during that time has held more than 100,000 individuals in custody without criminal charge — more than 100 times the scale of detention at Guantanamo. And once we look beyond Guantanamo to account for that neglected (yet far more representative and extensive) experience, the weaknesses of the aforementioned assumptions become clear:

* The Inevitable Loss of Overseas Detention Facilities: Changing strategic and diplomatic circumstances ensure that the United States eventually must shut down detention facilities it operates in connection with overseas deployments. This is happening now in Iraq, and will happen soon in Afghanistan (and thus Afghanistan is no long-term solution to the Guantanamo dilemma).

* Military Adaptation to the Prosecution-Support Function: Compelled by strategic necessity, the U.S. military has quietly adapted its procedures at the point of capture and organizational structures in the field in order to maximize the prospects for host-nation prosecutions — all contrary to conventional wisdom about the incompatibility of such efforts with the military’s mission.

* The Viability of the Security Internment Model: Whereas the Guantanamo debate typically oscillates between the criminal prosecution and combatant detention models, the vast majority of detentions in Iraq have rested on a distinct, ad hoc security internment regime modeled on (though not directly justified by) the Fourth Geneva Convention.

* Procedural Evolution and the Convergence Thesis: In keeping with the predictions of the convergence thesis, the weak procedural safeguards associated with security internment eventually gave way in Iraq to more robust protections, and much the same is now occurring in Afghanistan. The convergence thesis also warns, however, that the opposite can be expected to happen in the criminal justice system as it comes to shoulder more of the load in terms of national security.

* The Dynamic Relationship Between Law and Strategic Context: The American experience in Iraq lends support to the argument, associated with Philip Bobbitt, that law and strategic context exist in dynamic relationship. The point is not that states may disregard law in pursuit of security (indeed, this thesis holds that support for the rule of law is central to security). The point is that the law relating to detention is not static, but instead will tend to adapt over time to the strategic context.

These claims rest in significant part on a large body of after-action reports written by Judge Advocates upon their return from deployment in Iraq over the past seven years, supplemented by interviews with non-lawyer servicemembers who experienced our shifting detention policies in Iraq from the perspective of captures in the field.