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Prolonged Detention– How long?

Department of Defense General Counsel Jeh Johnson at the Senate Ar

Earlier today, the Senate Armed Services Committee held a hearing on “legal issues regarding military commissions and the trial of detainees for violations of the law of war” (archived webcast here).  At that hearing, Department of Defense General Counsel Jeh Johnson supported the notion of “prolonged detention.”  He noted that “as a matter of legal authority”– citing the “laws of war,” the Authorization to Use Military Force, and Hamdi– the United States could continue to detain a person as long as that person “continues to be a security threat.”

I think Johnson is misreading the Hamdi decision and accepted international law. In Hamdi Justice O’Connor, who issued the opinion of the Court, explained:

It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U.S. T. 3316, 3406, T. I. A. S. No. 3364 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities”). See also Article 20 of the Hague Convention (II) on Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1817 (as soon as possible after “conclusion of peace”); Hague Convention (IV), supra, Oct. 18, 1907, 36 Stat. 2301(“conclusion of peace” (Art. 20)); Geneva Convention, supra, July 27, 1929, 47 Stat. 2055 (repatriation should be accomplished with the least possible delay after conclusion of peace (Art. 75)); Praust, Judicial Power to Determine the Status and Rights of Persons Detained without Trial, 44 Harv. Int’l L. J. 503, 510—511 (2003) (prisoners of war “can be detained during an armed conflict, but the detaining country must release and repatriate them ‘without delay after the cessation of active hostilities,’ unless they are being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences” (citing Arts. 118, 85, 99, 119, 129, Geneva Convention (III), 6 T. I .A. S., at 3384, 3392, 3406, 3418)).

Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. See, e.g., Constable, U.S. Launches New Operation in Afghanistan, Washington Post, Mar. 14, 2004, p. A22 (reporting that 13,500 United States troops remain in Afghanistan, including several thousand new arrivals); J. Abizaid, Dept. of Defense, Gen. Abizaid Central Command Operations Update Briefing, Apr. 30, 2004, http://www.defenselink.mil/transcripts/2004/tr20040430-1402.htm l (as visited June 8, 2004, and available in the Clerk of Court’s case file) (media briefing describing ongoing operations in Afghanistan involving 20,000 United States troops). The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF. (emphasis added)

Under Justice O’Connor’s formulation, Hamdi could be detained “for the duration of these hostilities.” While she did not provide a definition of what the “duration” or “active hostilities” meant, she noted that at the time of the case, U.S. forces were “still involved in active combat in Afghanistan.”  This is indeed the traditional law-of-war approach– persons can be detained as long as there are “active hostilities.”

Johnson, however, is suggesting a different standard. Rather than basing the authority to detain on the existence of the “active hostilities,” he is basing it on whether the individual continues to be a “security threat.”

A few comments.

First, under existing international law, I have great difficulty with the notion that a person could be detained indefinitely without trial solely based on claims that he or she continues to pose a “security threat.”  Even is the person is a bona fide threat, a doctrine of preventive detention does not sit well under existing law.

Second,  this problem points to one of the difficulties of applying traditional law-of-war approaches to terrorism. In the context in which the Geneva Conventions were written, it was assumed that armed hostilities took place between states or other established international actors. The combatants were merely tools of these international actors. Hence, once the international actors had ended active hostilities, the combatants were no longer a “security threat” and could be released if they had been detained. In the context of terrorism, it is indeed possible that any given detainee might continue to pose a risk even after active hostilities. And perhaps this is where Justice O’Connor was leaving the door open, when she noted that “[i]f the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that [traditional law-of-war] understanding may unravel.” She did not need to wade into that uncertain water because active hostilities were still taking place in Afghanistan.

Third, I am not sure there is a happy fix to the problem. Certainly, efforts should be made to draft a new Geneva Convention to address the challenges of terrorists and other non-state actors. But in the current context, I fear that once the “conflict” is over– whatever that may mean– the United States may need to release certain persons even though they individually may continue to pose a real threat. But, as we see in the criminal justice system, it is not unusual that some persons have to be released even though authorities may conclude that they continue to pose a threat– think of the numerous crime bosses and others who have been released for lack of admissible evidence. This is unfortunate, but it is one of the prices of a democracy rooted in human rights.

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2 Comments

  • SwiftPoint says:

    Couple of points. First, the laws of war permit detention of civilians that pose a security threat. (It’s in the Geneva Conventions; don’t know where.) But of course, the standard is vague, and the GCs, as you point out, were directed at hostilities with a not-too-distant terminus.

    Second, we administratively/preventively detain individuals outside the criminal context for non-punitive reasons. Aliens offshore can be detained for prolonged periods of time, and individuals that, for mental health reasons, pose a threat to themselves or others may be detained.

    Third, democracies can tolerate release of crime bosses for lack of evidence because the damage and injury they inflict is not widespread — and indeed, most crime bosses want nothing to do with harming civilians, except perhaps as incidents to their criminal activity. Put otherwise, the costs of releasing crime bosses are far less than the costs (risk) of releasing terrorists. For both, the probability of returning to their evil ways may be equally high, but for the terrorist, the MAGNITUDE of their offenses is far greater.

  • Max Lybbert says:

    Under Justice O’Connor’s formulation, Hamdi could be detained “for the duration of these hostilities.”

    But Hamdan put some limits on that, mainly that the military could detain people, but needed some sort of review to continue detaining people. My understanding is that all detainees either have to be released at the end of hostilities or be convicted (of a charge allowed by the Geneva Conventions, such as committing war crimes) to be held longer than hostilities.

    Even is the person is a bona fide threat, a doctrine of preventive detention does not sit well under existing law.

    I agree. Interestingly, Johnson has even made the claim that (1) should the Administration prosecute a detainee, and (2) the prosecution fails, the military can continue to hold the detainee ( http://washingtonindependent.com/49886/johnson-opens-the-door-to-post-acquittal-detentions ). I don’t know if Johnson believes that an acquitted detainee can be held longer than hostilities, though.

    [T]his problem points to one of the difficulties of applying traditional law-of-war approaches to terrorism. In the context in which the Geneva Conventions were written, it was assumed that armed hostilities took place between states or other established international actors.

    I believe I’ve heard that before. In fact, I remember Administration lawyers being ridiculed for calling some Geneva Convetnion requirements “outdated” or “quaint” for just this reason. What changed?

    I am not sure there is a happy fix to the problem. Certainly, efforts should be made to draft a new Geneva Convention to address the challenges of terrorists and other non-state actors. … I fear that once the “conflict” is over … the United States may need to release certain persons even though they individually may continue to pose a real threat.

    I get the impression that continued or indefinite detention may possibly be justified in some cases. A year or two ago we were told that indefinite detention is always wrong under any circumstances. Again, what changed?

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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.