Featuring
Jeffrey D. McCausland
Diamond6 Leadership and Strategy; Former Senior Fellow, Carnegie Council
"Strategy" according to one source is the "art of the possible". Otto von Bismarck, German Chancellor, once remarked that there were two things no one really should witness. The first was the creation of strategy or policy. The second was the making of sausages. Both these observations suggest that the creation of strategy is difficult, complex, and not to be taken lightly.
Scholars have frequently argued that national strategy formulation consists of three parts. First, "ends" or the determination of objectives a government is trying to accomplish. Second, "ways" or the policies put in place to move a nation from where it is currently to a desired future. Third, "means" or the resources (normally people, money, and time) devoted to accomplish stated requirements. Governments have not only a responsibility to formulate strategy in the conduct of foreign policy but also to explain their policies to their populations and the world community more broadly.
November 13, 2007, marked the sixth anniversary of President Bush granting American military forces sweeping authority to detain and interrogate members of al-Qaeda and their supporters. It further established the basis to create military commissions to try any detainee that was believed to have been involved in the planning or commission of a war crime. In the intervening six years, issues surrounding the incarceration and treatment of the detainees at Guantanamo and elsewhere have severely damaged the prestige of both the Bush administration and the nation in the eyes of Americans as well as allies and opponents around the globe.
Despite these difficulties and the passage of time, the United States has not formulated a true strategy for dealing with detainees as part of its overall counter-terrorism approach. The preponderance of effort has focused on detainee treatment and the legality of military commissions to try those accused of potential war crimes. Questions concerning the release of prisoners who either might be exonerated by the commission process or found no longer to pose a threat to the United States or its allies have received less attention. In addition, the Bush administration has failed to explain adequately its strategy and how this fits into the overall national effort to confront international terrorism to both the American public and the international community. This is despite the fact that these issues have ethical, diplomatic, as well as security implications.
It is interesting to note, for example, that the most recent edition of the National Security Strategy of the United States (2006) makes no mention of detainees, Guantanamo, or an American overall strategy. This is particularly curious given that it does underscore the importance of nine essential tasks.1 The following three appear dependent to some degree on an effective "detainee strategy":
- Champion aspirations for human dignity.
- Strengthen alliances to defeat global terrorism and work to prevent attacks against us and our friends.
- Work with others to defuse regional conflicts.
Several questions highlight not only the complexity of the detainee issue but also other concerns that a comprehensive strategy must embrace. These include the release or transfer of detainees to their countries of origin if exonerated of war crime charges, determined to no longer be a threat, or transferred in response to negotiated agreements between the United States and their respective homelands. It also serves to emphasize the critical importance of providing greater policy transparency to enhance understanding at home and abroad.
The Changed Nature of War
Carl von Clausewitz, the renowned Prussian military theorist, is probably the first modern strategic thinker.2 He is largely remembered for his dictum that "war is politics by other means", but Clausewitz also observed that "war is like a chameleon and changes its colors". This was true during the Napoleonic era when Clausewitz composed his book. Nations observed the transition to levee en mass brought about by forces of nationalism and events such as the French Revolution. It is probably even truer in our current war in the 21st century.
In the 20th century America was confronted by adversaries who were stationary, observable, and conventional. Our enemies' weapons of choice were tanks, planes, bombs, ships, and so on; and an individual soldier was not a significant threat to our nation's security. Our adversary today is agile, unconventional, and stealthy. His weapons are Microsoft, suicide vests, machetes, AK47s, and roadside bombs. This enemy uses an unprecedented level of asymmetry. The existence of weapons of mass destruction has created the so-called "super-powered individual" that may not only have the ideological motivation but also the material means to inflict significant harm to any nation.3 Modern transportation and changes in demographics have further provided our potential enemies a global reach. Many argue that these changes have not only made the identification of combatants in war more difficult but further suggest that the release of a particular individual may have potentially greater consequences than during previous conflicts.
The 21st century has also clearly ushered in another significant change to the nature of war. "Information" has now been elevated to be a critical factor in the formulation of strategy. General (retired) Sir Rupert Smith, former deputy commander of NATO, noted in his recent book The Utility of Force: The Art of War in the Modern World that the role of information and the media has taken on an entirely new meaning in the modern age. Smith argued that modern leaders have a symbiotic relationship with the press. The media needs them because they are the cause and source of the story; leaders need the media to tell the story to their advantage.4 The importance of information and perceptions has also not been lost on our opponents. In fact they have sought to take better advantage of this new reality. In 2005 Ayman Muhammad Rabaie Al Zawahiri, the principle deputy to Osama bin Laden, observed in a letter to Abu Musab al-Zarqawi, the leader of al-Qaeda in Iraq, "I say to you that we are in a battle, and that more than half this battle is taking place in the battle field of the media. And that we are in a media battle in a race for the hearts and minds of our nation." Consequently, it is critical that any strategy (particularly one that is concerned with issues of human rights) take into account perceptions, and how policies are perceived at home and abroad.
During wars in previous eras, those captured on the battlefield or prisoners-of-war were treated consistent with the laws of warfare and the Geneva Conventions. There was no question about the legality of their incarceration. No group sought to obtain any type of legal hearing about their status. Obviously, one of the first questions for any prisoner of war was when he or she would be released. Prisoner release normally occurred at the conclusion of the conflict between the respective state protagonists, though the Soviet Union did not release the last German prisoners of war from World War II until 1956 some 11 years after the end of hostilities. During this same conflict the United States held over 400,000 Italian and German prisoners in camps in the American southwest. It is perhaps easy to imagine that morale among these prisoners was on the rise in early December 1944 as the allied armies were advancing rapidly across France. They probably hoped that they might be released as early as the spring of 1945. Their hopes were dashed at least temporarily by the German counteroffensive in late December that became the Battle of the Bulge.
More recently, throughout the Vietnam War the United States government never claimed that the holding of American prisoners by the North Vietnamese was illegal. Both the Johnson and Nixon administrations consistently insisted that the Hanoi regime must treat prisoners in accordance with international law and release them once the conflict was concluded. The Bush administration decided from the very onset that it would not give those captured during the war in Afghanistan and elsewhere prisoner-of-war status. On February 7, 2002 President Bush announced that al-Qaeda and Taliban detainees should be treated: (1) humanely, (2) consistent with the principles of the Geneva Convention, and (3) consistent with military necessity. This was for a number of reasons that included the fact that these individuals were not wearing uniforms, organized in units, or representing a sovereign state conducting a declared war. Furthermore, they have also hidden amongst the civilian population as well as targeting innocent civilians as part of their overall strategy. Still the question of detention length has been central. Since most experts argue that the so-called "war on terrorism" might last for generations, the historical precedent of releasing those captured at the conclusion of combat would likely mean anyone detained may be imprisoned for the remainder of their lives.
Who Stays and Who is Released from Guantanamo
One of the clearest examples of the lack of a broad understanding of the detainee issue surrounds who they are, how they were determined to be so-called "enemy combatants", and what are the criteria whereby they are released or transferred. Over 100,00 detainees have been captured in Iraq and Afghanistan since September 11, 2001. The vast majority have been returned to the control of these two nations or the country of the detainee's origin.
Some 800 suspected al-Qaeda and Taliban have been sent to Guantanamo. Overall, 40 different countries have at one time or other been represented in the Guantanamo population. Currently about 275 detainees remain. American officials have argued that those now being held include terrorist trainers, bomb makers, recruiters, financiers, and would-be suicide bombers. Most Americans would be surprised to learn that the majority detained at Guantanamo have in fact been released or transferred. Military officials there often point out, however, that in at least 30 cases a detainee who had been released was confirmed to have returned to the fight. Some have either been recaptured or killed during subsequent combat operations.5
The Bush administration established a definition for an "enemy combatant" as follows:
An enemy combatant is an individual who was part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.6
Initially, the decision on whether or not a captured individual was in fact an enemy was made by an Article V tribunal in the theater of military operations.
On 28 June 2004, a Federal court challenged the detention of those at Guantanamo and directed that a process needed to be created beyond the Article V tribunal to review the information supporting a detainee's designation as an enemy combatant. In response the Department of Defense established "Combatant Status Review Tribunals (CSRT)". These are boards of three officers. The presiding officer is a full colonel or Navy Captain, and one member is a Judge Advocate attorney. Each detainee is assigned a personal representative to assist him in presenting evidence disputing his designation, and the detainee is present during the CSRT. The panel is directed to ascertain if the preponderance of evidence supports the detainee's designation as an "enemy combatant". If it is determined (and this has occurred) that the detainee never was or is no longer an "enemy combatant," the Department of Defense notifies the Department of State who is responsible for coordinating the detainee's release with the individual's home country.7
Once a determination has been made that a detainee is an enemy combatant, he is then subject to an Administrative Review Board (ARB). The ARB is constructed in a similar fashion to the CSRT, though one member is experienced in the field of military intelligence. Each detainee's case is reviewed annually by an ARB, and all reasonably available, relevant information is considered. The detainee is allowed to participate and provide information. Information provided by his home country and relatives can also be made available to the ARB. The board makes its determination based on the following four criteria: (1) is the detainee still a potential threat to the United States or its allies; (2) does he potentially have significant intelligence information; (3) is there evidence that the detainee may have committed an act of terrorism or violated the laws of war and could be subject to the Military Commission process; and (4) is he possibly of law enforcement interest. The Bush administration has argued that this process is unprecedented, historic, and not required by either the Geneva Conventions or international law. It has further contended that the process that has been established and endorsed by Congressional legislation mitigates concerns about indefinite detention during the ongoing war.8 Each detainee's status is reviewed by an ARB annually. The board is empowered to make three possible determinations: release to the individual's home country, transfer with conditions, or continue to detain.
This process was changed by the action of the Supreme Court on 12 June 2008. The court ruled that detainees at Guantanamo had the right of habeas corpus and the indefinite detention of a detainee was in fact a form of punishment. As a result each detainee may sue in US Federal court, and force the government to present the rationale for his detention. This was a major setback for the administration. It will probably accelerate the ultimate closing of Guantanamo, as it is extremely unlikely that any additional detainees will be moved to this facility. The court ruling was also a rebuke of Congress for passage of legislation that established a review process that this opinion deemed unconstitutional.
Still this determination may not be as comprehensive as some observers have first suggested. First, while this ruling acknowledges that detainees at Guantanamo have the right of habeas corpus, there is no guarantee that they will exercise this right. For example, there is some reason to believe that the most notorious prisoner at Guantanamo, Khalid Sheikh Muhammed, may elect not to seek a habeas corpus hearing. Second, the opinion focused solely on those being held at Guantanamo. The court ruled that American law is applicable to this territory due to the long term presence of US forces and the expectations that the United States will control this territory indefinitely. Consequently, this opinion does not provide habeas corpus rights to any non-American detainee held by US forces in Iraq, Afghanistan, or elsewhere around the globe. Third, subsequent rulings have made it clear that this may not delay the trial of those alleged to have committed war crimes before Military Commissions.9
Still, there can is little doubt that the procedures established by the Bush administration for the conduct of these commissions have perhaps been the most contentious aspect of the detainee issue. Many people will be surprised, however, to learn that probably no more than 75 to 100 of the current detainee population of roughly 275 are likely ever to appear before a commission. While the purpose here is not to review the many legal arguments surrounding the Military Commissions, it is interesting to note that a detainee who was found innocent of allegations that he committed acts in violation of the laws of war by a military commission could still be detained following his commission. This would occur if he is still considered to be a threat to the United States and its allies as many who retain significant intelligence information are. This would nonetheless be subject to a court review under the terms of habeas corpus.
As suggested above, a significant number of detainees have in fact been released. This has occurred in part because of the willingness of the receiving governments to assume responsibility for their nationals and, if needed, agree to take steps to mitigate any future threat the detainee might pose to the international community. Still this has not occurred without difficulty. Each person captured by American or coalition forces is considered "protected" under the Geneva Conventions and international law. As a matter of policy, the United States does not transfer persons from Guantanamo to countries where it determines that it is more likely than not that they would be tortured. While this is consistent with the non-refoulement obligation under Article 3 of the Convention Against Torture, the American position has been that this obligation is non-applicable as a matter of law. State Department legal authorities have argued that non-refoulement does not apply outside the territory of a State Party, and Article 7 of the International Covenant on Civil and Political Rights (ICCPR) does not contain a non-refoulement obligation. Still, as a matter of policy the United States has adopted the position that detainees will not be released to their country of origin without clear assurances (certified by the State Department) that they will not be persecuted upon their return home.
These international statutes were adopted following the treatment of Ukrainians by the allies at the end of World War II. In May 1945, there were approximately 3 million surviving Ukrainian displaced persons under allied control. A significant number had in fact joined the German Army during the initial days of the Nazi invasion of the Ukraine. By the fall of 1945, all but 200,000 had been repatriated to the USSR. Many, if not most, were forcibly returned to the Soviet Union against their will and in violation of their rights under the Geneva Convention. Stalin subsequently claimed that these Ukrainian refugees were Nazi war criminals. Hundreds of thousands were executed immediately upon their return to Soviet control, and many others were imprisoned in the Gulag concentration camps.10 Consequently, at the conclusion of the Korean War in 1953, a Neutral Nations Repatriation Commission was established to handle the disposition of prisoners who refused to be repatriated to their home country. This body oversaw literally thousands of North Koreans who chose to remain in the south and the strange case of 21 Americans who decided to remain in North Korea. The commission completed its work and was dissolved in February 1954.11 This principle of "protected persons" was invoked by Amnesty International in a suit against the Canadian government for the transfer of Afghan prisoners captured by Canadian forces to the Afghan government. Amnesty International argued that this was "forced repatriation," and that the prisoners were likely subject to human rights abuses.12
Consequently, the process has frequently been difficult even when it has been determined by a CSRT or ARB that a detainee can be released. It has often resulted in unusual diplomatic maneuvering and exchanges between the United States and several foreign nations. Some detainees have argued against their return to their homelands. Several countries also have indicated that they do not wish to have a detainee returned even if cleared by an ARB. Others have refused to acknowledge that a particular detainee is their citizen.
The detention of 13 Chinese Uighurs illustrates these problems. Representatives for the Uighurs have argued that they were sold to American intelligence representatives for bounty by Pakistanis in 2002. The men had arrived in Afghanistan to train at an al-Qaeda training camp only a few weeks prior to the onset of the American bombing and had subsequently fled the country. They have further argued that they were training in Afghanistan in order to return to their province to oppose the Chinese government and were not a threat to the United States or its allies. By 2005, a review panel determined that at least five of the eighteen captured Uighurs were no longer enemy combatants. Still they continued to be held at Guantanamo, because US State Department officials feared that they faced retribution at the hands of the Chinese. American representatives attempted unsuccessfully to convince a dozen countries to accept them. They were finally transferred in 2006 to Albania where they now live in a compound run by the United Nations.13
Another example is Yemen. Currently, there are nearly 100 Yemenis detained at Guantanamo, and the United States has indicated its willingness to transfer a number of them to Yemeni control. So far at least, American officials have not completed the transfer of these Yemeni detainees because of concerns about the potential threat they still pose to the international community and a lack of confidence that the government of Yemen is willing to take even minimal steps to mitigate such problems in future.
The United States has transferred ten detainees to Yemeni control, and it is reported that all have been released from prison without any assurances that they will not engage in terrorist activities. American concerns were exacerbated when the Yemeni government released Jamal al Badawi from prison last October. Badawi is alleged to have helped plan the attack on the USS Cole in 2000 that resulted in the deaths of 17 American sailors.14 He is currently wanted by the FBI, and there is a $5 million reward for his capture. In addition, an American citizen, Jaber Elbaneh who has been one of the FBI's most wanted terrorism suspects startled a court in Yemen when he suddenly appeared. Elbaneh was one of a group of Yemeni Americans who attended an al-Qaeda training camp in Afghanistan in 2001. Six returned to the United States and were subsequently convicted and sentenced on terrorism charges. American prosecutors charged Elbaneh in abstentia, and he was subsequently convicted in a Yemeni court and imprisoned in 2004. In 2006 he and 22 other suspected al-Qaeda members broke out of a high security prison in the Yemeni capital. During his surprise appearance in the court room Elbaneh claimed that he had surrendered directly to the president of Yemen, Ali Abdullah Saleh, and been absolved of his crimes.15
Detainees in Iraq
Strangely there are no Iraqi detainees at Guantanamo. Still the United States currently has over 23,000 detainees under its direct control in Iraq. The United States is authorized to detain these Iraqis based on the current United Nations Security Council Resolution (UNSCR) and Article 78 of the Geneva Convention. The UNSCR authorizes Multi-National Forces Iraq to detain individuals "necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq's security".16 These detainees have been designated "security internees" and are afforded all rights envisioned by the Geneva Convention Article IV. This includes a review of each individual's case upon their detention and every six months thereafter until they are released. In addition, American and Iraqi forces have established and are conducting extensive programs to educate, rehabilitate, as well as provide job training in order transition them back to Iraqi society.
This number has skyrocketed in the last year due to the "surge" of American forces and expanded operations. The vast majority of the Iraqis held are Sunnis (roughly 85%), and the overall number continues to grow by approximately 500 every month. This also includes currently over 250 detainees from over 20 other countries outside Iraq. This may become a significant issue during the negotiation of the Strategic Framework Agreement between the United States and Iraq that began in January 2008.17 This accord is designed to replace the United Nations Security Council Resolution that has been the legal basis for American presence in Iraq and is scheduled to expire on 31 December 2008. The Iraqi government has steadfastly argued that they will not extend the UNSCR beyond that date. Senior American officials responsible for the detention facilities in Iraq estimate that the United States will still have over 18,000 detainees at that time.
Iraq clearly lacks the capacity to accept these detainees, though many Iraqi officials have already begun to argue that they should be transferred to Iraqi national control. Experts estimate that Iraq needs space for 50,000 additional prisoners, but plans exist currently to create only 20,000 more prison beds in 2008. Many Americans working with the Iraqis believe that improvements were hindered by government inaction, corruption, and sectarianism.18 Improvements to the Iraqi justice system were recommended by the Iraq Study Group led by former Secretary of State James Baker.19 Many American officials also believe that Iraqi jails controlled by the Ministry of Interior were being used by Shiite militia groups as late as 2006 to torture and execute Sunni prisoners. These allegations have been further substantiated in reports prepared by Human Rights Watch.20 Consequently, some observers believe the United States could be subject to allegations of "forced repatriation" of these Iraqi detainees who are mostly Sunni. This could be based on these previous allegations of human rights violations committed against prisoners that have been levied against the Iraqi Ministry of Interior.
ConclusionsObviously, this relatively brief analysis is not intended to explore all of the components that an effective strategy for detainees demands. It is intended to highlight the process that has developed to determine the status of detainees and make decisions about who will continue to be detained and who will be released. It has not explored the many legal questions concerning the military commission process that have been at the center of the debate. Rather, it seeks to provide a better understanding of the process and highlight current and future diplomatic, legal, and ethical challenges. As stated at the onset, a comprehensive strategy must carefully formulate the ends or objectives, the ways or policies, and the means to be employed.
Still there are certain initial steps that would begin to shift policy in the direction of a comprehensive strategy. First, framing the issue in these terms forces us to confront the reality that the perceptions of the process and associated decisions on issues such as release have profound effects both home and abroad. Considering the detainee issue as a strategy would broaden the discussion from primarily the legal questions surrounding the actual conduct of military commissions (while not detracting from their importance). This would seem appropriate. For example, it probably would surprise most Americans to learn that the United States currently holds over 25,000 detainees (most in Iraq), and probably no more than about 80 will ever appear before a military commission. Discussing the issue in these terms will over time expand understanding at home and abroad.
Second, the United States must engage more vigorously with countries around the world on this issue. We must seek, where necessary, to refine bilateral agreements on extradition and issues surrounding detainee repatriation. The goals of these discussions must be consistent with our desire to prevent future terrorist acts while seeking appropriate guarantees that those released to their homelands are not persecuted. American policymakers should insure that the failure of any state to provide these safeguards and assurances is brought to the attention of the international community in bilateral negotiations as well as international forums. The status of those Iraqi detainees currently held by the United States in Iraq following the completion of the negotiations for the Strategic Framework Agreement will be a crucial aspect of this part of the overall strategy.
This is not a new recommendation. The Final Report of the National Commission on Terrorist Attacks Upon the United States (also known as The 9/11 Commission Report) recommended in 2004 that the United States engage other nations in developing a comprehensive coalition strategy. It further recommended that the U.S. "engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists".21 This report further acknowledged that allegations levied against America concerning the abuse of prisoners in U.S. custody have complicated our efforts to build the diplomatic, political, as well as military alliances required. This effort should also seriously consider discussions on potential changes to the Geneva Conventions to reflect the new reality of war in the 21st century.
During the Cold War, the United States effectively used the issue of human rights as part of its overall strategy to confront and contain the Soviet Union. The US insisted on a high standard of human rights accountability for implementing the Final Act of the Helsinki Accords. Then Secretary of State Cyrus Vance summed up the administration's resolve to make the advancement of human rights a central part of American foreign policy in a major speech at the University of Georgia in April 1977.22
Sadly, the failure on the part of the United States to implement an effective strategy with respect to detainees has resulted in many Americans (as well as others abroad) questioning whether or not human rights remain central to American national security strategy and foreign policy. Whatever candidate is successful during this year's presidential election must consider how to reverse these perceptions. A detainee strategy must be consistent with American values, protect the operational requirement to hold those captured on the battlefield, and be accepted by friends and allies around the world. It must be both comprehensive as well as transparent. Finally, our detainee strategy in future must acknowledge the significant diplomatic, ethical, legal, as well as security components required.
1. The National Security Strategy of the United States (Washington: US Government Printing Office, 2006), p. 1.
2. Michael Howard and Peter Paret, eds.,Carl von Clausewitz—On War (Princeton, New Jersey: Princeton University Press, 1976).
3. Thomas L. Friedman, The Lexus and the Olive Tree (New York: Anchor Books, 2000), pp. 14-15.
4. Rupert Smith, The Utility of Force: The Art of War in the Modern World (New York: Random House, Inc, 2007).
5. Former Guantanamo Detainees who Have Returned to the Fight (Washington: Department of Defense, 12 July 2007)
6. Department of Defense Briefing, Combatant Status Review Tribunal (CSRT) and Administrative Review Board (Washington: Department of Defense, 24 June 2005), p. 6.
9. "Judge Rejects Delay in Guantanamo Trial", International Herald Tribune, 29 June 2008, p. 4.
10. Marta Dyczok, The Grand Alliance and Ukrainian Refugees (Basingstoke, United Kingdom: Palgrave Macmillan Publishers, 2007). See also Mark Elliott, "The United States and Forced Repatriation of Soviet Citizens, 1944-1947", Political Science Quarterly, Volume 88, Number 2 (June 1973), pp 253-275.
11. Office of the Chief of Military History, The Korean War, 1950-1953 (Washington: Department of the Army, 2003), p. 571
12. Canadian Broadcasting Company, "Challenge on Handling of Afghan Prisoners Can Continue: Court", 5 November 2007.
13. R. Jeffrey Smith and Julie Tate, "Uighurs' Detention Conditions Condemned", Washington Post (30 January 2007), p. A04.
14. Robert Worth, "Yemen's Deals with Jihadists Unsettle the US", The New York Times (28 January 2008), p. 1.
15. Robert F. Worth, "Wanted by FBI, but Walking Out of a Yemen Hearing", The New York Times (1 March 2008), p. A3.
16. Task Force 134 Public Affairs, "Overview of Task Force 134 Detainee Operations" (Baghdad: Multi-National Forces Iraq, 1 March 2008).
17. Office of the Press Secretary, "Declaration of Principles for a Long-Term Relationship of Cooperation and Friendship Between the Republic of Iraq and the United States of America", (Washington: The White House, 26 November 2007).
18. Solomon Moore, "In Decrepit Court System, Prisoners Jam Iraq's Jails", The New York Times (14 February 2008), p. A12.
19. James A. Baker III and Lee Hamilton (co-chairs), The Iraq Study Group Report, (New York: Vintage Books, 2006), p. 83.
20. Ibid. See also Doug Struck, "Torture in Iraq still Routine, Report Says", The Washington Post (25 January 2005), p. 1.
21. National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (Washington: US Government Printing Office, 2004), pp. 379-380.
22. John Fry, The Helsinki Process—Negotiating Security and Cooperation in Europe (Washington: National Defense University Press, 1993), pp. 25 and 30.
