rssWhat Is ‘Battlefield’ Detention, Anyway?
Thursday, July 02, 2009 at 11:30 am
- 3 Comments
Since my piece on the intensifying battle over “preventive detention” was published, Ken Gude from the Center for American Progress wrote to point out an important distinction that deserves more emphasis.
As I note in my story, Gude and Kate Martin, Director of the Center for National Security Studies, have both written in support of the president’s right to detain combatants under the laws of war. But that support raises two key questions: who is a combatant and what is a war?
Congress, in passing the Authorization for the Use of Military Force (AUMF) in 2001, allowed the president to wage war “against those responsible for the recent attacks launched against the United States” — namely, al-Qaeda and the Taliban, when they ran Afghanistan. But since no one walks around wearing al-Qaeda or Taliban uniforms, who’s actually a member and therefore detainable remains a major point of contention.
Similarly, the laws of war allow for the detention of a combatant captured on the battlefield until the conflict is over. But whether the battlefield is the specific zone where U.S. forces are stationed in Afghanistan or Iraq, or an area as broad as anywhere in the world that terrorists who hate the United States may be found, is hotly debated. Many of the lawyers I cite in my piece today, such as Martin, Gude and the eleven lawyers who signed the letter to President Obama imploring him not to authorize some new form of preventive detention, argue for the geographically more limited definition of detention.
As Gude wrote in The Guardian: “During this ongoing military conflict, the US clearly possess the authority to detain enemy fighters captured on the battlefield or fleeing from it.”
And as the military and defense lawyers write in their letter to Obama, the laws of war “do not authorize the detention of people for terrorist activities far from the battlefield, which are not acts of war but criminal acts.”
The Bush administration interpreted the laws of war far more expansively than that, however, seizing and detaining for years suspected terrorist sympathizers as far away as Thailand, Bosnia and Illinois. Few, if any, civil libertarians would approve of such an expansive reading of the president’s wartime detention authority.
Yet those who advocate new detention legislation, such as Benjamin Wittes at Brookings, think that distinction makes little sense. And that’s why they want an entirely new system that is not constrained by the laws of war.
Because in Wittes’s view, the laws of war allow you to detain, say, a not-very-important Taliban foot soldier, but not a leading al-Qaeda agent who’s found in Pakistan, far from the zone of conflict.
“Say you raid a safe-house in Pakistan,” he said yesterday. “You capture Abu Zubaydah. There are 10 people there with him, but nowhere near the battlefield. But they’re close enough to a very senior al-Qaeda member, and involved with building live bombs.” The government ought to be able to detain them all, says Wittes, yet the laws of war don’t necessarily allow that.
“My basic point is that the laws of war unambiguously detain a group of people who are frankly not the real problem in the counter-terrorism arena. And they give you only very ambiguous detention authority with respect to people who are the molten core of the problem … so why not have a detention authority that is designed for the group of people you actually want to detain?”
That question is sure to spark more controversy in the months to come.
3 Comments
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Comment posted February 16, 2010 @ 11:39 am
You quote Benjamin Wittes, citing the example of Abu Zubaydah, and approximately a dozen associates, captured in an alleged safehouse in Faisalabad on March 24 2002. Wittes calls Abu Zubaydah “a very senior al-Qaeda member”. I know that the Bush administration used to claim Abu Zubaydah was a member of al Qaeda's inner circle — that he had been third in command of al Qaeda.
However, while they made this claim it is simply not supported by the public record Abu Zubaydah, and his colleagues Ibn Al Shaykh Al Libi and Noor Uthman Muhammaed were (minor) rivals to Osama bin Laden, not his assistants of associates.
Al Qaeda had several military training camps in Afghanistan. The two most well-known al Qaeda camps were Al Farouq and Tarnak Farms. Al Qaida may have half a dozen or a dozen other camps. But, according to Indian Intelligence, the Taliban had allowed various militant groups it had given santuary to, to found and run over one hundred independent military training camps.
Of these camps the Khaldan training camp that Abu Zubaydah, Al Libi and Noor Uthman Mohammaed ran was the most famous. It was famous for training many of the foreigners the CIA had helped infiltrate into Afghanistan to fight the Soviet occupation during the 1980s. And it was famous for continuing to train muslims to prepare for armed conflict by acquiring new sponsors after the CIA dropped its sponsorship when to Soviets abandoned Afghanistan.
Both Abu Zubaydah and Noor Uthman Muhammaed independently testified at their Tribunals that the Taliban forced them to close the Khaldan camp in 2000 — a year before the attacks of 9-11.
I believe the public record strongly supports that Osama bin Laden regarded those who ran the Khaldan camp as his rivals. Abu Zubaydah testified he only met Osama bin Laden once — in 2000. He had sought him out to ask to use his influence to convice the Taliban not to shut down Khalden, the camp he had helped run. He testified that bin Laden told him (1) he would not help keep Khalden open; (2) the Taliban shut down at been at his request.
Why would bin Laden request the shutdown of the non-al Qaeda camps? I think the public record suggests two reasons. First, Khalden had one extremely important ideological policy difference with bin Laden and al Qaeda. While it helped train individuals to prepare for combat to defend Islam, unlike al Qaeda, it was not ideologically committed to attack the USA. Second, like al Qaeda it was supported by shadowy sponsors — probably from the same pool of shadowy sponsors. If bin Laden could get those other camps shut down he wouldn't have to share those sponsors.
Strategically, it was a big mistake for the USA to allow extremists to perform the interrogations, and the analysis thereof, of the men from Khalden. If true professional intelligence analysts had been in charge, sober, dispassionate men and women, not driven by a thirst for vengeance, they would have considered the possibility that the jealousies and ideological differences between al Qaeda and the men who ran Khalden could have been exploited.
If his testimony is to be believed Abu Zubaydah did not regard himself as a terrorist. He testified that the trainees at Khalden were taught only to attack military targets. It could be argued that his belief that he was not a terrorist didn't matter. Abu Zubaydah managed the safe houses in Pakistan where candidates for training were received and he vetted them. He said he had not actually visited the training site in Afghanistan himself for years. He may not have really known to what extent trainees were instructed not to target civilians. Additionally, at least one graduate, Ahmed Ressam, had chosen to target civilians.
But perhaps it was worthwhile to have used the humane, rapport-building approach to interrogation function — and to have allowed humane interrogators to have played up that they too believed he was not a terrorist like bin Laden, and to have used Abu Zubaydah's stated denunciation of terrorism.
This shared apparent rejection of terrorism could have been used to induce him to coperate more fully with counter-terrorism analysts.
Abu Zubaydah had been, for a decade, the most visible face of the most famous training camp in Afghanistan. Would there not have been value to agree to give him some kind of release to house arrest — provided every time al Qaeda released a new video he pumped out a video in response that criticized al Qaeda for its un-Islamic attacks on civilians?
Comment posted February 16, 2010 @ 4:39 pm
You quote Benjamin Wittes, citing the example of Abu Zubaydah, and approximately a dozen associates, captured in an alleged safehouse in Faisalabad on March 24 2002. Wittes calls Abu Zubaydah “a very senior al-Qaeda member”. I know that the Bush administration used to claim Abu Zubaydah was a member of al Qaeda's inner circle — that he had been third in command of al Qaeda.
However, while they made this claim it is simply not supported by the public record Abu Zubaydah, and his colleagues Ibn Al Shaykh Al Libi and Noor Uthman Muhammaed were (minor) rivals to Osama bin Laden, not his assistants or associates.
Al Qaeda had several military training camps in Afghanistan. The two most well-known al Qaeda camps were Al Farouq and Tarnak Farms. Al Qaida may have half a dozen or a dozen other camps. But, according to Indian Intelligence, the Taliban had allowed various militant groups it had given santuary to, to found and run over one hundred independent military training camps.
Of these camps the Khaldan training camp that Abu Zubaydah, Al Libi and Noor Uthman Mohammaed ran was the most famous. It was famous for training many of the foreigners the CIA had helped infiltrate into Afghanistan to fight the Soviet occupation during the 1980s. And it was famous for continuing to train muslims to prepare for armed conflict by acquiring new sponsors after the CIA dropped its sponsorship when to Soviets abandoned Afghanistan.
Both Abu Zubaydah and Noor Uthman Muhammaed independently testified at their Tribunals that the Taliban forced them to close the Khaldan camp in 2000 — a year before the attacks of 9-11.
I believe the public record strongly supports that Osama bin Laden regarded those who ran the Khaldan camp as his rivals. Abu Zubaydah testified he only met Osama bin Laden once — in 2000. He had sought him out to ask to use his influence to convice the Taliban not to shut down Khalden, the camp he had helped run. He testified that bin Laden told him (1) he would not help keep Khalden open; (2) the Taliban shut down at been at his request.
Why would bin Laden request the shutdown of the non-al Qaeda camps? I think the public record suggests two reasons. First, Khalden had one extremely important ideological policy difference with bin Laden and al Qaeda. While it helped train individuals to prepare for combat to defend Islam, unlike al Qaeda, it was not ideologically committed to attack the USA. Second, like al Qaeda it was supported by shadowy sponsors — probably from the same pool of shadowy sponsors. If bin Laden could get those other camps shut down he wouldn't have to share those sponsors.
Strategically, it was a big mistake for the USA to allow extremists to perform the interrogations, and the analysis thereof, of the men from Khalden. If true professional intelligence analysts had been in charge, sober, dispassionate men and women, not driven by a thirst for vengeance, they would have considered the possibility that the jealousies and ideological differences between al Qaeda and the men who ran Khalden could have been exploited.
If his testimony is to be believed Abu Zubaydah did not regard himself as a terrorist. He testified that the trainees at Khalden were taught only to attack military targets. It could be argued that his belief that he was not a terrorist didn't matter. Abu Zubaydah managed the safe houses in Pakistan where candidates for training were received and he vetted them. He said he had not actually visited the training site in Afghanistan himself for years. He may not have really known to what extent trainees were instructed not to target civilians. Additionally, at least one graduate, Ahmed Ressam, had chosen to target civilians.
But perhaps it was worthwhile to have used the humane, rapport-building approach to interrogation function — and to have allowed humane interrogators to have played up that they too believed he was not a terrorist like bin Laden, and to have used Abu Zubaydah's stated denunciation of terrorism.
This shared apparent rejection of terrorism could have been used to induce him to coperate more fully with counter-terrorism analysts.
Abu Zubaydah had been, for a decade, the most visible face of the most famous training camp in Afghanistan. Would there not have been value to agree to give him some kind of release to house arrest — provided every time al Qaeda released a new video he pumped out a video in response that criticized al Qaeda for its un-Islamic attacks on civilians?
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