* forthcoming scholarship
[I’m afraid this falls into the category of shameless self-promotion…]
Robert Chesney (University of Texas School of Law)
Virginia Journal of International Law, Vol. 51, 2011
The post-9/11 debate regarding the law and policy of military detention is shot through with flawed assumptions. It tends to assume, for example, that if the factual and legal predicates for using military detention without criminal charge can be established in the first instance, then for good or ill that model can be sustained over the long term. It tends to assume that evidence-gathering and other activities associated with criminal prosecution are alien to military training, doctrine, practice and culture. It tends to assume a sharp and exhaustive categorical distinction between the realm of criminal law enforcement and the realm of military detention without criminal charge. At the highest level of generality, it presupposes that the legal framework applicable to detention is relatively static, that it is not responsive to changing strategic circumstances. And not coincidentally it does all of this through the lens of Guantanamo, focusing relentlessly on the peculiar circumstances of slightly less than 800 individuals who have been detained there over time.
No one doubts that detention at Guantanamo matters, or that it gives rise to complex questions of law and policy. But some perspective is in order. The U.S. military has been deployed to Iraq for more than seven years, and during that time has held more than 100,000 individuals in custody without criminal charge—more than 100 times the scale of detention at Guantanamo. And once we look beyond Guantanamo to account for that neglected (yet far more representative and extensive) experience, the weaknesses of the aforementioned assumptions become clear:
* The Inevitable Loss of Overseas Detention Facilities: Changing strategic and diplomatic circumstances ensure that the United States eventually must shut down detention facilities it operates in connection with overseas deployments. This is happening now in Iraq, and will happen soon in Afghanistan (and thus Afghanistan is no long-term solution to the Guantanamo dilemma).
* Military Adaptation to the Prosecution-Support Function: Compelled by strategic necessity, the U.S. military has quietly adapted its procedures at the point of capture and organizational structures in the field in order to maximize the prospects for host-nation prosecutions—all contrary to conventional wisdom about the incompatibility of such efforts with the military’s mission.
* The Viability of the Security Internment Model: Whereas the Guantanamo debate typically oscillates between the criminal prosecution and combatant detention models, the vast majority of detentions in Iraq have rested on a distinct, ad hoc security internment regime modeled on (though not directly justified by) the Fourth Geneva Convention.
* Procedural Evolution and the Convergence Thesis: In keeping with the predictions of the convergence thesis, the weak procedural safeguards associated with security internment eventually gave way in Iraq to more robust protections, and much the same is now occurring in Afghanistan. The convergence thesis also warns, however, that the opposite can be expected to happen in the criminal justice system as it comes to shoulder more of the load in terms of national security.
* The Dynamic Relationship Between Law and Strategic Context: The American experience in Iraq lends support to the argument, associated with Philip Bobbitt, that law and strategic context exist in dynamic relationship. The point is not that states may disregard law in pursuit of security (indeed, this thesis holds that support for the rule of law is central to security). The point is that the law relating to detention is not static, but instead will tend to adapt over time to the strategic context.
These claims rest in significant part on a large body of after-action reports written by Judge Advocates upon their return from deployment in Iraq over the past seven years, supplemented by interviews with non-lawyer servicemembers who experienced our shifting detention policies in Iraq from the perspective of captures in the field.