Detention Policy Recommendations with Michael Ratner Comments – Working Paper – PDF

2008 Detention Policy Recommendations with Michael Ratner Comments

The administration claims the U.S. is engaged in a “global war on terror” wherein it may seize any individual anywhere in the world and hold him incommunicado in a secret prison indefinitely without trial. It is now clear that its core reason for doing so was to be able to use “enhanced interrogation techniques” that are internationally outlawed as torture. It cites the 9/11 AUMF as congressional authorization for these powers.

It’s most extreme claims — no court review ever and detention authority over persons associated with groups associated with Al Qaeda or the Taliban — are being rejected by the courts, at least regarding detainees seized in the US or held in Guantanamo. Next year, a new administration will have the opportunity to reject these policies. But now there are calls for Congress to authorize very broad detention authority and sanction a new legal regime of preventive detention.

But a new legal regime is not necessary. A new detention policy grounded in proper application of the traditional law of war and the criminal law would serve the national security while being respectful of the rule of law and human rights. Following is an outline of such a policy. It is consistent with and drawn from the relevant rulings by the Supreme Court.

Rather than asserting that the law of war applies everywhere (while then ignoring or violating that law) or that only the criminal law is applicable to terrorism detentions, a new policy should recognize that both the law of war and the criminal law are relevant and should be followed.

When military force is used, consistent with constitutional authorization and international obligations, the United States should follow the traditional understanding of the law of war, including the Geneva Conventions, when detaining individuals.

Individuals seized in a theater of active hostilities are subject to military detention and trial pursuant to the law of war.

When suspected terrorists are apprehended and seized outside a theater of active hostilities, the criminal law must be used for detention and trial.

When this framework is applied, it becomes clear that there are different categories of detainees who must be treated differently.

Application of the law of war: In Hamdi, the Supreme Court reaffirmed the authority of the U.S. military engaged in active combat pursuant to congressional authorization to use military force to seize fighters on the battlefield and detain them as combatants under the law of war. Accordingly, the following categories of individuals may be targeted, captured and held without charges under the law of war and may be tried by appropriate military tribunals:

  1. Fighters in Afghanistan or Iraq (or other countries where U.S. military forces are engaged in active hostilities in the future); all such individuals, immediately upon capture, shall be provided a hearing pursuant to Article 5 of the Geneva Conventions and military regulations to determine whether they are entitled to be treated as prisoners of war, should be released as innocent civilians, or may be held as combatants pursuant to the Supreme Court’s decision in Hamdi; and

(this category seems fine)

  1. Osama bin Laden and the other self-proclaimed planners and organizers of the 9/11 attacks, per the explicit language of the AUMF. This is a small number of individuals. The administration has identified approximately six individuals detained at Guantanamo as planners of the attacks and a limited number of others, including bin Laden, remain at large.

I disagree about this category—to the extent al Qaeda people are picked up in Afghanistan or Iraq as part of the force opposing the US in that war I am ok with it–

But this goes further– 1) just because the Congress authorized the use of force against entities involved in 9/11 does not mean that it authorized preventive detention authority or that it is constitutional—see Hamdi on this with regard to detention different than that in the

and even if it did

2) I am not convinced such preventive detention would comply with international law.

I am not sure Congress can make acts of terrorism acts of war and hold people preventively under international law—see the ICCPR provision on the kind of emergency where this can be done—and I am not sure I would want to say they could–

3) this also runs the risk of a much broader interpretation of the AUMF then you have given it and I think it may well be read way—you say “planners and organizers of the 9/11 attack” would be the only people covered under this theory-6 people—But—AUMF says has broader language—”planned, authorized, committed, or aided … or harbored”

I think aided could be given a broad definition eg Hamdan and harbored is all of the Taliban

Here is the AUMF—IN GENERAL—That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Any of these individuals who are also alleged to have committed crimes under the U.S. criminal code may also be tried in federal court.

Application of the criminal law:

  1. Suspected al Qaeda terrorists seized in the United States or elsewhere, other than Afghanistan or Iraq, must be treated as suspects under criminal law. They cannot be held without being charged with a crime. See Ex Parte Milligan.

I am not sure why al Qaeda people or harborers for that matter who are seized outside of Afghanistan can’t be preventively detained under your theory of category (2). In the US I understand your argument but not outside—and so I think your category (2) opens a wide door

Detainees at Guantanamo: The United States should begin a process to close the Guantanamo detention facility. (See report by the Center for American Progress for helpful recommendations for how to do so.1) The current detainees at Guantanamo are alleged to fall within all three categories listed above. However, their situation is complicated by the fact that the government violated the law in seizing, detaining and interrogating them and has held them for so long with no process.

They are all entitled to habeas hearings.

Those who have been determined eligible for release should be released as soon as possible.

Those detainees who are not alleged to have been captured on the battlefields of Afghanistan or Iraq or fleeing therefrom may not be held by the military as combatants, but must be either charged with a crime, transferred to another country for prosecution on criminal charges, or released.

Those detainees who are alleged to have been captured in Afghanistan or Iraq and been part of al Qaeda or Taliban forces may be detained until the end of hostilities in those countries if the habeas court makes the requisite factual findings.—

This is the odd category and why do you need it. If these people were captured in Iraq and Afghanistan as part of those wars against the US, why a separate category? If these are AUMF detentions for 9/11 detentions I don’t think the narrowness of this category will stick.

Additional Recommendations:

Military tribunals:

If military trials are sought for those subject to military jurisdiction as outlined above, they should be conducted pursuant to the Uniform Code of Military Justice courts martial rules to the greatest extent possible.

I have no problem with this unless it is used to try alleged terrorists picked up outside the battlefield, eg your category 2

Humane treatment: All detainees shall be treated humanely; no individual may be detained in secret; and extraordinary renditions shall be prohibited and detainees may not be transferred to countries where there is a reasonable likelihood they may be tortured.

The CIA program of secret detention and interrogation of suspected terrorists shall be ended.

1 See Ken Gude, How to Close Guantanamo, Center for American Progress, June 2008, available at: