Detention: Law of

What Would We Do With Detainees Captured Outside Afghanistan? Must-Read Testimony from McRaven and Allen on Counterterrorism Policy

By Robert Chesney
Wednesday, June 29, 2011, 10:43 AM

[UPDATE: See here for a clarification; contrary to my original read below, it appears Admiral McRaven did not mean for the list of disposition options to refer to non-AUMF scenarios] While many eyes were on Senate Foreign Relations Committee's WPR hearing yesterday,  the Senate Armed Services Committee hearing relating to the nominations of Admiral McRaven as the new SOCOM commander and General Allen as the new commander in Afghanistan somewhat unexpectedly generated some very interesting insight into hte current state of the administration's detention/rendition/prosecution policies.  Here is the first key exchange, with emphasis added by me:

 SENATOR GRAHAM:  ... If you caught someone tomorrow in Yemen, Somalia, you name the theater, outside of Afghanistan, where would you detain that person?

ADMIRAL MCRAVEN:  Sir, right now, as you're well aware, that is always a difficult issue for us. When we conduct an operation outside the major theaters of war in Iraq or Afghanistan, we put forth -- we -- and again I'll defer to my time as a JSOC commander -- we put forth a concept of operation. The concept of operation goes up through the chain of command -- military chain of command and is eventually vetted through the interagency, and the decision by the president is made for us to conduct a particular operation. Always as part of that CONOP are options for detention. No two cases seem to be alike. As you know, there are certain individuals that are under the AUMF, the use of military force, and those are easier to deal with than folks that may not have been under the authority for AUMF. In many cases, we will put them on a naval vessel and we will hold them until we can either get a case to prosecute them in U.S. court or...

...

SENATOR GRAHAM: What's the longest we can keep somebody on the ship?

ADMIRAL MCRAVEN: Sir, I think it depends on whether or not we think we can prosecute that individual in a U.S. court or we can return him to a third party country.

SENATOR GRAHAM: What if you can't do either one of those?

ADMIRAL MCRAVEN: Sir, it -- again, if we can't do either one of those, then we'll release that individual and that becomes the -- the unenviable option, but it is an option.

The key here is that Admiral McRaven distinguished between those who are within the scope of the AUMF and those who are not (presumably either a person affiliated with some terrorist group other than al Qaeda, the Taliban, or associated forces, or else a lone wolf).  His statement that some persons must be prosecuted, rendered to third country custody, or else released--albeit after a period of interim custody on a ship--does not, in other words, refer to AUMF-covered persons.  So the issue, if there is an issue, is whether we should be surprised or in any event unhappy that non-AUMF-covered-persons can be dealt with only in this manner post-capture (notice that Admiral McRaven has said nothing here regarding the use of lethal force outside the context of the AUMF, which is a different kettle of fish).  I don't think we should be surprised, nor is this necessarily problematic--though it really depends on what the AUMF is actually thought to cover.  If it is thought to cover AQAP, for example, that would be one thing, but if it is not thought to cover AQAP that would be quite another.

So far so good.  But there was more testimony later:

SENATOR LEVIN:  Finally, Admiral... you made reference to a couple I think that are on a ship, something like that. Is there any legal prohibition against them being tried before an Article 3 court or before a military commission?

ADMIRAL MCRAVEN: Sir, again, it depends on the individual case, and I'd be more than happy to discuss the cases that we've dealt with.

SENATOR LEVIN: Well, no, not...specific cases so much as is there any legal prohibition, assuming it's planned...having those people tried either before an Article 3 court, if they've committed a crime against the United States, or if they've committed a crime of war, by being tried by a U.S. military commission?

ADMIRAL MCRAVEN: Sir, not to my knowledge, there is no prohibition.

There are two points here, really. Bear in mind that the question refers to the category of persons noted above -- i.e., those who are captured outside Afghanistan who are not within the scope of the AUMF, presumably because they are not involved iwth al Qaeda, the Taliban, or associated forces.  Senator Levin's question points out, first, that there is no current prohibition on bringing such persons into the U.S. for trial.  That, it seems to me, is or at least should be uncontroversial.   Second, the question also raises the issue whether such persons could be tried by military commission. It seems to me the answer has to be no, insofar as the jurisdiction of commissions is limited to a category of persons who are involved with al Qaeda or have engaged with hostilties--in which case the AUMF would cover them, and they'd be beyond the category that Admiral McRaven was talking about in the first place. [UPDATE: A READER MAKES THE GOOD POINT THAT THERE COULD BE SOME OTHER, NON-AUMF-RELATED HOSTILTIES IN WHICH SOMEONE INVOLVED IN THOSE HOSTILITIES COMMITS A WAR CRIME, THUS BEING WITHIN THE SCOPE OF ADMIRAL MCRAVEN'S HYPO BUT ALSO WITHIN COMMISSION JURISDICTION]

Then there was more testimony, explicitly shifting focus to persons who clearly are in the scope of the AUMF, using Ayman al-Zawahiri as the new paradigm case (so much for all the bin Laden hypos we once used):

SENATOR AYOTTE: ....I wanted to follow up, General Allen, on the question of detention. If we were to, for example, capture someone like Ayman al- Zawahri in Yemen, for example, outside of Afghanistan, could we detain him in Afghanistan at the detention facilities there?

GENERAL ALLEN: We would not recommend that.

SENATOR AYOTTE: And why is that?

GENERAL ALLEN: Because Afghanistan is a sovereign country.

SENATOR AYOTTE: So we're not going to use the detention facilities, for example, in Afghanistan to detain terrorists who are captured outside the territory of Afghanistan?

GENERAL ALLEN: It's not our intention.

This is very interesting and important.  I don't think General Allen is making a legal claim here, but rather is describing a practical/policy reality.  It if often thought that so long as have the DFIP or a similar overseas detention facility in a combat zone, we at least have the option of holding any AUMF-covered detainee there.  But that makes the mistake of assuming that Afghanistan has no more say with respect to the DFIP than the Cubans have with respect to GTMO.  General Allen's testimony suggests that it is hardly that simple., and he suggests that we either cannot or at least do not currently intend to take extra-theater detainees into Afghanistan for detention, even if plainly within the scope of the AUMF (something that is good news, incidentally, from the point of view of those trying to prevent the extension of habeas jurisdiction to the DFIP).

But of course it also raises the question: where then would we take an al Qaeda figure captured outside the theater?  This question had arisen with respect to bin Laden a while back, and it was suggested in Congressional testimony that we would probably take bin Laden at least initially to Afghanistan.  But General Allen's testimony suggests this is no longer the case.  So Senator Ayotte asked the natural follow-up question:

SENATOR AYOTTE: And following up, Admiral, with respect to detention, if we, for example, were to capture al-Zawahiri and -- capture and not kill him but hold him for purposes of gathering intelligence and detaining him long term, because we felt we needed to under the law of war, where would we hold him?

ADMIRAL MCRAVEN: Yes, ma'am, I think that is a policy question that I'm really not in a position to answer. From a practical military standpoint, obviously we can hold -- hold Zawahiri or Anwar al-Awlaki or anybody else in a number of places, from a practical standpoint. It becomes a policy issue and a sovereignty issue for various countries. And as General Allen said, we have looked a number of times at whether or not we would do that in Afghanistan, but owing to the nature of the sovereignty of Afghanistan and the concern about the potential backlash from the Afghan government, we have recommended not to do that.

SENATOR AYOTTE: And, Admiral, would it not be helpful 10 years into the war on terror to have a long-term detention and interrogation facility that would be secure for individuals where we need to gather further intelligence?

ADMIRAL MCRAVEN: Ma'am, I believe it would be very helpful.

SENATOR AYOTTE: And as far as you understand it, is Guantanamo Bay still off the table in terms of being used for that type of facility?

ADMIRAL MCRAVEN: As far as I understand it, it is, yes, ma'am.

So there you have it: Afghanistan is off the table in light of the host-state resistance to being the locus of long-term detention for extra-theater detainees such as al Qaeda's senior leadership, but GTMO remains foreclosed as well.  What then would happen if tomorrow we had actionable intelligence on Zawahiri's location, found him somewhere in Pakistan, and managed to nab him through some daring JSOC/CIA TItle 50/10 snatch-and-run operation?  Presumably it would be back to the USS Carl Vinson or some other such vessel for the short term.  But for the long term?

One option of course is to bring Zawahiri to the United States itself, whether to face trial (by civilian court or military commission) or just to be held in military detention ala Jose Padilla, Ali al-Marri, or Yaser Hamdi.  But of course there would be a huge amount of domestic political blowback, all the more so as the next election draws nearer.  It might be very hard to pull the trigger on that option.  And even if this were done, it might end up being a one-time-only option, as I can readily imagine Congress responding by outright prohibiting the same move going forward (which would be irresponsible, but that doesn't mean they would not do it).

The alternative?  The alternative is the creation of something the same as GTMO at some other location where host-state objections can be overcome or somehow don't matter.  But it's hardly obvious that this option exists.

What then?  Well, the administration could back down on the proposition that no new detainees should be brought to GTMO.   That, or the operation could involve killing rather than capturing the target in the first place,