Wednesday’s news that the Trump Administration was preparing an executive order addressing the detention and interrogation of enemy combatants, coupled with President Trump’s interview comments that “torture works,” has resulted in understandable but premature panic over a potential policy allowing for detainee abuse. Jack Goldsmith’s thoughtful analysis of the document correctly points out that the draft order’s apparent reversal of Obama-era detainee policies actually does little to change anything of substance. The White House has subsequently distanced itself from the draft executive order, and reports indicate that neither Secretary of Defense Mattis nor the Director of the Central Intelligence Agency Mike Pompeo had seen the draft before it was leaked.
The document’s provenance and Jack’s prescience aside, there is little reason to believe the order would survive review by those responsible for implementation. Nevertheless, it is indeed time for the new Administration to be thinking about the difficult decisions it has to make regarding current and future wartime detention of enemy fighters. And, as we have learned through years of experience, developing a principled, credible, and sustainable detention policy will require more than simply undoing the policies of the prior administration.
U.S. detention policy has been a work in progress for more than a decade, and both the United States and its allies have had much painful experience from which to learn. Although President Trump has been right to denounce the myopic focus on closing Guantanamo, which President Obama wrongly called a “blot on our national honor,” few would commend abandoning all of the lessons learned over the past sixteen years. There is a clear cost to the reputational harm wrought by past detention policies. And we should avoid incurring that cost again by following a few basic principles gleaned through years of trial and error under both previous administrations.
First and foremost, we need to recognize that there is no shame in wartime detention. Critics have referred to GTMO as a “legal black hole” for the failure to prosecute or release detainees. But when a State regularly drops bombs and conducts lethal strikes, it is at war and is no longer operating solely in a law enforcement framework. And in war, morally responsible countries take prisoners—as a preventive vice punitive measure and as a humane alternative to killing them—regardless of any intent to prosecute. Wartime detention should not be confused with pretrial confinement.
Second, once past the false guilt, we need to recognize that effective warfighting requires detention—meaning we need a place to detain captured fighters. The Obama Administration placed a heavy emphasis on ending U.S. detention operations and closing facilities. This approach put combatants back on the battlefield to threaten our forces and caused a loss of intelligence collection opportunities. Releasing combatants—or more harmfully, failing to capture them in the first place—only prolongs the conflict. And more chronically, it risks upending the moral calculus by incentivizing lethal (and irreversible) strikes over capture. Ending wartime detention should take a back seat to successfully ending the war itself. And using less-experienced or less-principled proxies is not the right answer.
Of course we too must ensure our detention is humane and consistent with the laws and customs of war. All three branches of government and both political parties have agreed that detainees must be afforded the most basic protections found in the Geneva Conventions, and the U.S. Government has wisely surpassed those legal requirements for more than a decade. Law of war detention is not a punitive measure, and humane treatment is legally and morally required. Although there are reasonable arguments that “enhanced interrogation techniques” can yield intelligence gains, those gains may be outweighed by the benefits of principled, clear limits that further our reputation internationally, foster the good order and discipline of our own armed forces, and facilitate our ability to work cooperatively with allies.
Finally, we should proudly embrace our own successes in developing the law of war to accommodate new circumstances. In today’s non-traditional war, where individual status is sometimes uncertain and the conclusion of the conflict even less so, there is understandable uncertainty regarding the length of detention. The Department of Defense has developed individualized detainee review processes to ensure we don’t hold the wrong people and that detention remains necessary in an evolving conflict. All of these review processes have flaws, but their existence represents a clear example of U.S. leadership in developing principled policies to meet changing circumstances. That leadership should continue.
The Trump Administration is right to recognize detention as a lawful and appropriate component of warfare—not a blot on our honor. Besides serving a protective function, wartime detention yields valuable opportunities for intelligence collection and exploitation, thus making it both morally and operationally preferable to killing. But the new administration should also remain steadfast in its commitment to the rule of law and principled leadership. As we have found over the past fifteen years, doing so is not only a moral and legal imperative, it is essential to successful warfighting.