Saturday, January 29, 2011

The Contours of Law of War Detention

My institution recently co-hosted with the International Committee of the Red Cross an intensive workshop on International Humanitarian Law for law students. At left, is Lt. Colonel Chris Jenks of the Office of the Judge Advocate General teaching conflict classification.
This was the fifth annual such workshop, which focuses on lectures and hands-on exercises to elucidate the principles and challenges of applying humanitarian law to contemporary armed conflicts. In the past, the Workshop has culminated with a multilateral negotiation and drafting exercise focused on the intersection of acts of terrorism and the law of armed conflict. This year, participants engaged in a role play (two photos at right) in which they made comments before the House Armed Services Committee Subcommittee on Terrorism, Unconventional Threats, and Capabilities on a domestic law-of-war detention draft statute entitled the "Law of War Privileged and Unprivileged Belligerents Preventative Detention Act of 2011."
The exercise required students to debate a number of foundational issues, including:
  1. The definition of "armed conflict" to distinguish law of war detentions from other forms of administrative and punitive detention that the United States might engage in.
  2. The definition of "battlefield" to enable authorities to distinguish between battlefield detentions (which could be effectuated for short periods of time with minimal process) and detentions made outside of the battlefield. The draft language defined "battlefield" a number of alternative ways, including with reference to active zones of conflict (e.g., Iraq, Afghanistan, and the FATA areas of Pakistan), but also more generally as any area in which hostilities or acts of terrorism are regularly planned or launched and in which belligerents are billeted or trained. This is the topic of Laurie Blank's (Emory) research, as we've featured here.
  3. The definition of "member," to account for the fact that membership in Al Qaeda, the Taliban, or "associated forces" was one contemplated ground for detention. The draft legislation also grappled with how a detainee could demonstrate that any prior membership relationship had been terminated, as by desertion, withdrawal, or discharge.

  4. The definitions of "privileged" and "unprivileged" belligerents and differential detention regimes for each. The former was defined with reference to the categories enumerated in Article 4 of the Geneva Convention. The latter was defined with reference to both membership in enumerated and unenumerated groups as well as on conduct grounds. The legislation listed various forms of conduct that might constitute grounds for detention, including acquiring terrorist skills, possessing a thing that is connected with a hostile act, providing substantial support to any hostile or terrorist act against U.S. armed forces or coalition forces, and directly participating in hostilities against the United States or coalition partners without the privilege of doing so. In preparing these competing formulations, we drew on definitions of "enemy combatant" that have been employed in post-9/11 military orders, legislation, and jurisprudence as discussed here.

The legislation was premised on a three-phase detention regime:

  • Phase one involved a short (48 or 72 hours) battlefield detention that could be effectuated by any member of the U.S. armed forces (or member of a coalition force) pursuant to a minimal burden of proof. Extensions were contemplated in exceptional circumstances upon the order of any commanding officer.

  • Phase two, continued detention, would only follow a hearing before a Review Board (whose precise composition was in dispute). The government would be subject to a higher burden of proof at this stage, with possible standards ranging from preponderance of the evidence to compelling evidence. Phase 2 was subject to periodic review (6 months was proposed in keeping with the security detention regime envisioned by the Fourth Geneva Convention).

  • Stage three, so called extended detention, would follow after an undetermined number of periodic reviews and would be subject to an even higher burden of proof. Students also debated whether periodic review should be automatic or subject to some showing of changed circumstances or new evidence.

  • Students also debated a provision that would dissolve all detention orders after ten years.

Some members of the Committee were designated as opposed to the legislation altogether; accordingly, they argued that the original Authorization to Use Military Force (AUMF) provides all the detention authority the United States needs going forward. Other testified that it is harder to justify contemporary detentions under the 2001 AUMF, especially where individuals are detained far from Afghanistan. In addition to these substantive provisions, students also discussed various procedural issues concerning conditions of detention, the handling of classified information, and access to the outside world.

Now that they have had a chance to grapple with such specifics, the students involved in this exercise will no doubt be in a better position to evaluate President Obama impending Executive Order on indefinite detention to govern current detainees.

No comments: