Detention: Law of

What the Detention Policy Debate Really Is About

By Raha Wala
Monday, January 26, 2015, 2:16 PM

Ben bemoans the state our nation’s current debate over Guantanamo as “terrible,” observing that “the arguments about Guantanamo are nearly all wrong, disingenuous, irrelevant, or just plain dumb.”  It’s true that Guantanamo—like most political issues—sometimes takes on a special kind of inside-the-beltway rhetorical flavor that can really annoy the wonks, who would much rather focus on the underlying policy debate.

So what is the underlying policy debate all about?  Perhaps it’s worth a refresher.

Ben’s right that it’s about the legal alternatives for detaining terrorism suspects—not Guantanamo as a particular detention facility.  But it’s not only about that.

Guantanamo is importantly symbolic because it is a detention facility that was specifically designed to put a category of human beings beyond the rule of law.  We are to this day still debating which constitutional provisions apply at Guantanamo in a way that would never be the case if we were talking about a military detention facility in the United States.  The images of hooded men in orange jumpsuits and prisoner cages, along with stories of torture and cruel treatment, will forever be associated with Guantanamo irrespective of current or future detention conditions, giving us reason to doubt that a terrorist group would have similar success fashioning a recruiting narrative from some other facility that can’t be easily described as a legal black hole where detainees are abused.  For similar reasons, Guantanamo—as long as it exists—will always be a stain on the United States’ global image, and an unfortunate prop that dictators and leaders of repressive governments will use to distract from their own human rights abuses.

Back to the underlying policy debate though, which is not about a particular detention facility in a particular place, but is about the appropriate legal authorities for detaining and prosecuting terrorism suspects.  The pro-GTMO advocates argue that many or most or all terrorist suspects should be held indefinitely without charge or trial under the laws of war, and prosecuted in military commissions under more lax procedures.  For some (Senator Lindsay Graham, for example), the argument has an ideological flavor: the United States is at war with Islamic terrorists so we should be treating them as “enemy combatants” rather than“criminalizing the war” by providing them with the kinds of due process rights associated with law enforcement operations.  The anti-GTMO advocates (human rights groups, for example) argue that we are not in fact at war with Islamic extremists, and that indefinite detention and military trials—harbingers of repressive regimes—are only appropriate in truly exceptional circumstances, which would not typically include terrorist attacks or government responses to them.

The other aspect of this debate has been on the efficacy (or lack thereof) of military detention and trials as a tool for incapacitating and gathering intelligence from terrorism suspects.  Here I think the ideological arguments of the pro-GTMO advocates have proven quite sticky, though they fly in the face of clear evidence and operational experience.  Most—even many who are familiar with these debates—seem to assume that military detention and trials provide additional flexibility and benefits to operators because you don’t have to read terrorism suspects Miranda rights or follow other procedural requirements of a law enforcement operation, and can hold detainees for longer periods of time for intelligence-gathering purposes.  In reality, civilian prosecutions have proven far more flexible than most understand; terrorism suspects picked up in myriad situations around the world have faced criminal charges in federal courts for as little as providing basic support to terrorist groups, or agreeing to do so (in addition to dozens of other charges not available in military commissions).  The procedures for protecting classified information in federal courts are so well-developed that the military has modeled its system at Guantanamo on them.  And despite the rhetoric on Miranda warnings, experienced interrogators and law enforcement officials have been quite successful in using criminal justice incentive structures and other means to elicit a wealth of useful information from terrorism suspects, including telephone numbers and email addresses used by al Qaeda and other terrorist groups, al Qaeda communications methods and security protocols, al Qaeda recruiting and financing methods, the location of al Qaeda training camps and safe houses, information on al Qaeda weapons programs, the identities of operatives involved in past attacks, and information about future plots to attack U.S. interests.

At the same time, any utilitarian calculus on the efficacy of military detention and trial needs to factor in the significant costs of such an approach, which pro-Guantanamo advocates rarely do.  Compared to civilian trials of terrorism suspects, the military commissions process has been sluggish, inconsistent, and subject to one legal challenge after another.  Three of the eightmilitary commission convictions have already been overturned, while civilian courts have completed over 500 international terrorism-related cases since 9/11, many of which involved suspects apprehended overseas who were involved in major terrorist attacks.  Courts have also forced the government to release a significant number of suspects who were being held without charge, and in any event most allies and counterterrorism partners of the United States refuse to provide access to suspects or intelligence if the result will be indefinite military detention or trial (as compared to a civilian court prosecution).  Experience in Iraq and Afghanistan shows that maintaining long-term military detention facilities in countries overseas is not sustainable because host governments will seek to wrest control over detainees and apply law enforcement standards that are consistent with the requirements of their domestic laws.  And the further we get from the 9/11 attacks, the less likely federal courts will continue to allow military detention and trials at Guantanamo or in a stateside facility.

These macro policy considerations are, in my view, much more important than narrower questions about what to do with Abu Zubaydah and Hambali, as important as those questions are.  (Though, to answer Ben’s challenge: I think everyone agrees that those detainees will have to be released at the end of hostilities pursuant to the laws of war, and it’s hard to argue that an entire war—and all related wartime policies—should continue for the purpose of holding a handful of detainees.  I am confident that our law enforcement and intelligence agencies, working with our allies, can handle any potential threat posed by these and other detainees after they are transferred.)

In sum: the policy debate for too long has assumed that military detention and trial of terrorism suspects confers significant benefits that only need to be traded off against whatever value we put on the rights considerations on the other side of the ledger.  The reality is much more complex: the “rights-respecting” option of pursing detention and trial primarily through law enforcement methods confers most of the same benefits—and in some cases more—compared to military detention and trial, with few of the costs, in all but the rarest of cases.  The burden is on those who support Guantanamo, and a policy of indefinite detention and military trials for terrorism suspects, to show otherwise.


Raha Wala is Senior Counsel for Defense and Intelligence at Human Rights First. In that role, he advocates for U.S. counterterrorism and national security policies that are consistent with human rights norms.  He is a recognized expert in international human rights and humanitarian law, and has worked to reform key post-9/11 counterterrorism policies, including indefinite detention and military commissions at Guantanamo; targeted killings in the U.S. drone program; “enhanced interrogation techniques” and other forms of torture or abusive interrogations; and counterterrorism war authorities, including the 2001 Authorization for the Use of Military Force (AUMF).