Paul Pillar

In Search of a Defensible Detention Policy

A topic on which I don't claim to have a good answer—only a lament that no one else seems to have one either—is the detention of suspected terrorists, and the rationale and legal regime under which they should be detained. As with many other debatable issues involving counterterrorism, this one did not suddenly arise, as often assumed, in September 2001. The issue had been around well before then, even if the salience of counterterrorism and the scope of operations conducted in the name of counterterrorism had not yet become big enough for most of the public to notice. When the possibility of getting Osama bin Laden into U.S. hands arose when he was about to leave Sudan in 1996, one of the complications for U.S. officials (in addition to still murky circumstances involving what assistance the Sudanese were or were not willing to provide) was the judgment that there probably was not sufficient evidence to be confident of convicting him in a U.S. criminal court. This was so even though bin Laden already was a major focus of counterterrorist work and concern in the U.S. government. A number of lesser but still dangerous figures who were captured during that era had their cases disposed of by turning them over to the not so tender mercies of other governments that had an interest in them—a practice that would become a matter of controversy only in later years, because of the use of torture by those governments.

Since 9/11, policies on detention became live issues for public discussion for two reasons. One was that the number of suspected terrorists being captured multiplied, mostly because of military operations in Afghanistan but also because of heavier pressure being placed on foreign governments to arrest and turn over suspects in places such as Bosnia. The other reason was a feckless debate about “war” versus “crime,” and the related declaration of a “war on terror,” which led to a lot of useless attempts to derive policy from a label or characterization being applied to the phenomenon being countered.

Setting aside the feckless rhetoric, a basic problem remains: just as with bin Laden in 1996, having strong reason to suspect that someone is a terrorist who, if allowed to remain at large, may inflict harm on U.S. interests is not the same as having sufficient evidence to prove in a court of law that this same person has committed a crime. Civilian courts ought to be used to the maximum extent possible for the same general reasons that they ought to be used to try non-terrorist crimes: they are the best embodiment anyone has come up with yet of justice and the rule of law, in contrast to injustice and caprice. But because of the aforementioned problem, they may have to be supplemented by other methods and procedures.

Some argue that we ought just to rely on military detention. But unless we are prepared to use a procedure that amounts to locking someone up and throwing away the key, what determines how long someone is incarcerated? Military detention ordinarily is bounded by the duration of a war; prisoners of war get repatriated after a war ends. But comparable talk regarding the detention of people involved in terrorism, a set of tactics that has been around for millennia and will continue indefinitely, makes no sense. There is no single foe to defeat, and there will be no armistice and no repatriation. References to the slogan “war on terror” don't cut it. 

Others have recognized this problem with military detention and have proposed creating a time-limited version of it. But what would be the standards for determining how long a prisoner stays incarcerated? How would this be any different from a civilian judge imposing a sentence, and what would be the justification for the difference? This seems like an awkward attempt to merge two systems that have different rationales and simply can't be merged.

A stopgap procedure in use over the last two years has been the review by federal judges of individual habeas corpus petitions submitted by prisoners at Guantanamo, as sanctioned by the Supreme Court's decision in Boumediene vs. Bush. By all indications the judges have been doing a fair and diligent job of trying to determine whom it is or is not safe to release. But in the interests of consistency, firmer and clearer standards are needed for the judges to apply.

Also in the nature of stopgap measures have been the Obama administration's efforts to correct the least justifiable aspects of detention arrangements left over from the previous administration. At the top of the list is the effort to close the detention facility at Guantanamo. That facility exists for the most indefensible of reasons. The reason was not so that detainees could enjoy warm Caribbean breezes. It was to try to exploit the peculiar status of a leased naval base in Cuba to put the detention of prisoners beyond the reach of any law—U.S. law, Cuban law, Afghan law, or any other law. The effort to close the facility is laudable; the Obama administration's failure to meet its self-imposed one-year deadline for doing so merely underscores the intractability of the whole terrorist detainee problem.