Detention & Guantanamo

Moving to Warrant-Based Targeting and the Law Enforcement Model in Afghanistan?

By Robert Chesney
Tuesday, March 20, 2012, 10:22 AM

A little while back, I wrote an article describing the evolution of our capture and detention policies in Iraq from 2003 to 2010 (based on a review of a massive pile of after-action reports and interviews from throughout that period).  The general thrust of that evolution, of course, was to move from a LOAC-driven military detention model to a law enforcement support model in which Iraqi judges played a critical role both in authorizing targeted captures (warrant-based targeting) and of course in adjudicating subsequent criminal prosecutions.  I described the shift as a progression inevitably brought on by the combination of the host state's increasing independence and capacity and contemporaneous decreases in the degree of commitment by the United States (i.e., the increasing U.S. desire to get out, and to facilitate this by transferring responsibility for detention to the host state).  I also argued that we were certain to follow the same model in Iraq sooner or later.

It seems to be happening sooner rather than later.  A few weeks ago the United States agreed to transfer control of the Detention Facility in Parwan to Afghanistan, news that raised the (still-unanswered) question whether the sole back-end disposition system going forward would be Afghan criminal prosecution of if, instead, the Afghans were willing to support non-criminal military detention.  Now comes word of a corresponding shift on the front-end with respect to captures.  The United States and Afghanistan have long disagreed as to whether the United States should continue to conduct "night raids" -- SOF raids targeting specific individuals for capture. Adam Entous of the Wall Street Journal reports here that the United States has now proposed the following compromise measure:

The administration's most significant proposed concession on night raids would subject the operations to advance review by Afghan judges, U.S. military officials said. One option under discussion in U.S.-Afghan talks would require warrants to be issued before operations get the green light.


Officials compared the proposed changes to the transition in Iraq, where in 2009 the U.S. agreed to seek legal approval before targeted raids.

"The idea is to start to transition not only to an Afghan lead, but to more of a law-enforcement approach," the official said. "It's very much in keeping with the rule of law that any sovereign nation ought to have."

That pretty much says it all, and none of it is surprising.