Proxy Detention in Somalia, and the Detention-Drone Tradeoff

By Jack Goldsmith
Friday, June 29, 2012, 11:25 AM

There has been speculation about the effect of the Obama administration’s pinched detention policy – i.e. no new detainees brought to GTMO, and no new detainees to Parwan (Afghanistan) from outside Afghanistan – on its other counterterrorism policies.  I have long believed there must be some tradeoff between narrowing U.S. detention capabilities and other counterterrorism options, at least implicitly, and not necessarily for the better.  As I wrote three years ago, in response to news reports that the Obama administration’s cutback on USG detentions resulted in more USG drone strikes and more outsourcing of rendition, detention, and interrogation:

There are at least two problems with this general approach to incapacitating terrorists.  First, it is not ideal for security.  Sometimes it would be more useful for the United States to capture and interrogate a terrorist (if possible) than to kill him with a Predator drone.  Often the United States could get better information if it, rather than another country, detained and interrogated a terrorist suspect.  Detentions at Guantanamo are more secure than detentions in Bagram or in third countries.

The second problem is that terrorist suspects often end up in less favorable places.  Detainees in Bagram have fewer rights than prisoners at Guantanamo, and many in Middle East and South Asian prisons have fewer yet.  Likewise, most detainees would rather be in one of these detention facilities than be killed by a Predator drone.  We congratulate ourselves when we raise legal standards for detainees, but in many respects all we are really doing is driving the terrorist incapacitation problem out of sight, to a place where terrorist suspects are treated worse.

The main response to this argument – especially as it applies to the detention-drone tradeoff – has been to deny any such tradeoff on the ground that there are no terrorists outside of Afghanistan (a) whom the United States is in a position to capture on the ground (as opposed to kill from the sky), and (b) whom the USG would like to detain and interrogate.  Dan Klaidman’s book provides some counter-evidence, but I will save my analysis of that for a review I am writing.  Here I would like to point to an important story by Eli Lake that reveals that the “United States soldiers have been hunting down al Qaeda affiliates in Somalia”; that U.S. military and CIA advisers work closely with the Puntland Security Force in Somalia, in part to redress piracy threats but mainly to redress threats from al-Shabab; that the Americans have since 2009 captured and brought to the Bosaso Central Prison sixteen people (unclear how many are pirates and how many are al-Shabab); and that American interrogators are involved in questioning al-Shabab suspects.

The thrust of Lake’s story is that the conditions of detention at the Bosaso Central Prison are atrocious.  But the story is also important for showing that that the United States is involved outside of Afghanistan in capturing members of terrorists organizations that threaten the United States, and does have a national security need to incapacitate and interrogate them.  It does not follow, of course, that the USG can or should be in the business of detaining every al-Shabab suspect currently detained in the Bosaso Central Prison.  But the Lake story does show that the alternatives to U.S. detention are invariably worse from a human rights perspective.  It portends (along with last month’s WPR Report and related DOD press release) that our creeping involvement on the ground in places like Somalia and Yemen mean that the USG will in fact be in a position to capture higher-level terrorists in al Qaeda affiliates.  And that in turn suggests that the factual premise underlying the denial of a detention-drone tradeoff will become harder and harder to defend.