Military Detention In Practice

The debate on military detention for suspected terrorists, in Guantanamo Bay and in a couple of test cases in the Continental U.S. has helped the issue of how military detention is handled in places where the U.S. has troops escape attention. But, the evolution of that process can inform the issue as a whole. A soon to be published law review article on the subject shows that military detention in war zones has tended towards a criminal procedural model, but also makes some important distinctions.

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. . . .

[T]he 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 . . . .

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. . . .

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. . . .

[T]he 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. . . . 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 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.

Robert M. Chesney (University of Texas School of Law) has posted Iraq and the Military Detention Debate: Firsthand Perspectives from the Other War, 2003-2010.

Whether the constitution requires it or not, a commitment to due process and refraining from torture aren't just moral imperatives. They are good military strategy. And, while Chesney argues that detention policies are constantly evolving, I think that he underestimates the extent to which the evolution reflects the process of the U.S. military, after a generation of trying to back away from counter-insurgency operations entirely in its training and doctrine, is gaining a sense of what the best practices are in that kind of operation as lessons learned. The military might do well to start out closer to right from the start in future wars.