Human Rights First’s Rona Dissents From Kate Martin’s Detention Position

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I write to correct any misimpression that the views expressed by Kate Martin reflect a consensus position among the human rights and civil libertarian community regarding U.S. detention policy in Afghanistan. That position is shaky on the law, far-removed from the facts on the ground, and, perhaps more important, it embraces policy positions that undermine human rights and long-term U.S. security.

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First, contrary to popular belief, the laws of war do not categorically provide for the detention of all fighters in all armed conflicts. If that is indeed what Hamdimeans, then Hamdimay be the final word in U.S. law, but it is an erroneous interpretation of the laws of war. The better reading of Hamdi— the reading that comports with international law — is that it construes the AUMF [September 2001 Authorization to Use Military Force] to provide detention authority to U.S. forces consistent with that contained in the laws of war.

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The laws of war do provide for the detention of all combatants and all civilians who pose a serious security risk in wars between states, known under the laws of war as international armed conflict. The Geneva Conventions specify this detention authority because privileged belligerents/combatants (namely, fighters who are not subject to criminal law for there lawful acts of belligerency) could not otherwise be detained; and because civilians are being detained by external authorities in such wars, and those authorities may have no power to invoke local laws and their attendant procedures and institutions, like courts.

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But in armed conflict that is not between two states, namely non-international armed conflict, the Geneva Conventions do not articulate detention authority. Neither do they prohibit it. This is logical because the persons to be detained have no “privilege of belligerency.” They are mere criminals under domestic law and may be detained as such. For this reason, the designation “unlawful enemy combatant,” created by the Bush administration to skirt U.S. legal obligations toward detainees, should be retired in connection with members of non-state armed groups. Under the laws of war, such persons do not enjoy “combatant” privileges of belligerency and the right to PoW status upon capture. (The appellation “unlawful” is also wrong because, contrary to another popular belief, unprivileged belligerency is not a violation of the laws of war as long as the targets are legitimate military objectives. It may well be a violation of domestic law, but all that is a separate issue.)

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But what about when State A (USA) detains people in a non-international armed conflict in State B (Afghanistan)? Actually, unless State B is a failed state unable to muster its own legal architecture – as long as it is a sovereign entity – it is that State that has the obligation to legalize detention, whether pursuant to criminal law, or a preventive detention scheme. In either case, the State’s law must articulate grounds for detention and procedures that comport with international standards for due process.

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At present, US detention in Afghanistan is not tethered, as it must be, to domestic legal authority. Having recently returned from a mission to Afghanistan to study US detention policies and practices, we (Human Rights First) have recommended to the President’s Detention Policy Task Force that the US should work with Afghan authorities to regularize detention under Afghan law.

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Second, and if you reject everything above, the distinction between battlefield and non-battlefield as a talisman for detention authority is itself a bit facile. There is surely a war going on in Afghanistan. And some would therefore say that the entire country is grounds for detention under their (mistaken) reading of the laws of war. But the vast majority of detainees are not captured shooting or laying improvised explosive devices. They are more often taken in night raids on their houses conducted pursuant to often questionable intelligence. These are precisely the circumstances for which a habeas-like proceeding is necessary to avoid the universally prohibited ill that is arbitrary detention.

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Third, even if I’m totally wrong on all my legal interpretations, there’s the question of what is good and right. Our military leaders understand that in a counterinsurgency conflict, the support of the local population is crucial. No one I know disagrees with the conclusion of our generals that in Afghanistan, we cannot kill and detain our way to victory and that we will instead, have to rely on practices that hew to internationally recognized norms of human rights law – whether legally mandated or not. I think they are mandated. Others think they are not. Actually, it doesn’t matter because adhering to them is simply the right and effective thing to do.