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Obama’s speech, prolonged detention, and the need for a new Geneva Convention

President Obama speaking earlier today at the National Archives  (photo-- Charles Dharapak / Associated Press)

President Obama speaking earlier today at the National Archives (photo-- Charles Dharapak / Associated Press)

In his speech on national security today, President Obama set forth the basic contours of his plan to deal with the detainees. In that speech, he wisely divided the detainees into five categories, laying out a method for addressing persons in each category: First, those that can be tried in regular federal district courts; second, those that can be tried in military commissions; third, those that have been released by courts; fourth, those that can be transferred to another country; and, fifth, those  who require continued detention. On this last category, the President explained:

Finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.

I want to be honest: this is the toughest issue we will face. We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture – like other prisoners of war – must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. Other countries have grappled with this question, and so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees – not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

It is indeed this fifth category that is the most difficult. Here are persons that cannot be tried, cannot be released, cannot be transferred, but continue to pose a threat. The previous Administration simple argued that the president had the right to indefinitely detainee these person– without any form of Congressional or judicial involvement. I believe that Obama is taking the right approach by proposing the creation of a new domestic legal regime to address persons that could be subject to prolonged detention. My suspicion is that such a regime could pass Constitutional muster if done properly.

But what about international law?

First, the Geneva Convention on Prisoners of War allows for POW’s to be detaineed until the conflict is over. By analogy, this principle would suggest that that there is nothing illegal about detaining other hostile persons as long as the conflict persists.

Second, and here is the problem, the Geneva Convention provisions dealing with the duration of detention are based on the assumption that the conflict is more akin to a traditional war or other armed conflict, where the conflict is among states or other political actors and that once the state or other group surrenders or is otherwise defeated, the individuals detained are no longer a threat. One of the problems with the current conflict, is that even if al Qaeda as an entity were “defeated,” the individual persons would still potential be a threat if released. Even Protocol II to the Geneva Conventions, which was adopted to address “non-international armed conflict” does not really provide useful guidance on this question. (And it should be noted that, in any case, the United States is not a party to Protocol II.) In short, there is a lacuna in international law.

So what is to be done?

There needs to be another Geneva Convention or additional protocol to address this and other problems relating to terrorism. Without going into all the potential issues to be addressed by such Convention, I would submit that it should, at minimum, address the following questions with respect to detention:

  • Definition of persons to be detained

Who can be detained? Within the United States, there have been several proposed definitions. The Bush Administration developed one, which the Obama Administration then modified. Most recently, federal courts have advanced others. It seems to make most sense to have a clear, international accepted definition that is not applicable only to al Qaeda or related groups, but that can be applied more generally.

  • A process for determining detention

Under the Geneva Convention on Prisoners of War, Article 5 envisions a process to determine whether a persons qualifies as a POW if there is doubt. Under the Bush Administration, Combatant Status Review Tribunals were created to determine whether a person should be detained. A new Geneva Convention would establish a procedure for applying the above definition.

  • A process for periodic review

Give that persons are potentially to be detaineed for a long period, the new Convention should provide for a periodic review by an established board. Such a review should take place for each detainee at some specified time– perhaps six months or a year. This board should evaluate the detainee to determine whether he or she continues to pose a threat. Such determination may be based on the past activities of the detainee, his or her behavior in detention, as well as the current status of any international conflict.

Needless to say, there are many more issues that a new Convention should address, but these are at least a start.

My hope is that as the Obama Administration begins working on domestic legislation relating to detention, it can also engage the Legal Advisor’s Office at the State Department and appropriate persons in the Departments of Defense and Justice to begin looking at the prospects for a new Geneva Convention.

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  • Max Lybbert says:

    I believe that Obama is taking the right approach by proposing the creation of a new domestic legal regime to address persons that could be subject to prolonged detention. My suspicion is that such a regime could pass Constitutional muster if done properly.

    But what about international law?

    First, the Geneva Convention on Prisoners of War allows for POW’s to be detained until the conflict is over.

    When the Bush Administration argued the Boumadiene case, they made the case that under the Geneva Conventions and traditional laws of war and enacting legislation the Guantanamo detainees could be detained without trial until the Afghanistan conflict ended. The Supreme Court decided to extend habeas review anyway.

    I am curious to see if this new domestic legal regime provides habeas review as well. Assuming it comes from Congress, I believe habeas could be suspended; but I’m not sure if a general law can be written to automatically suspend habeas in any future conflict “when the public safety require it.”

  • Max Lybbert says:

    Oops. Not being a lawyer I referenced the incorrect case and legal principle. The issue isn’t habeas (although I am interested in that).

    The case is Hamdi and the legal principle that the military can detain who it wants in a war zone, but must review those detentions in order to continue detaining people captured by the military.

    So, it appears to me there is a slightly higher bar to clear for domestic law (assuming Hamdi remains good law with a new Supreme Court appointment) than international law. I will be interested in seeing how Congress handles Hamdi.

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.