Detention Centers in the United States
With respect to detention, the Busht Administration’s detention practices were widely criticized around the world. The Obama Administration spent time in 2009 seeking to revise those practices to ensure their full compliance with domestic and international law, first, by unequivocally guaranteeing humane treatment for all individuals in U.S. custody as a result of armed conflict and second, by ensuring that all detained individuals are being held pursuant to lawful authorities.
To ensure humane treatment, on his second full day in office, the President Obama banned the use of torture as an instrument of U.S. policy. He directed that executive officials could no longer rely upon the Justice Department OLC opinions that had permitted practices that many consider to be torture and cruel treatment — many of which he later disclosed publicly — and he instructed that henceforth, all interrogations of detainees must be conducted in accordance with Common Article 3 of the Geneva Conventions and with the revised Army Field Manual.
An interagency review of U.S. interrogation practices later advised – and the President agreed – that no techniques beyond those in the Army Field Manual (and traditional noncoercive FBI techniques) are necessary to conduct effective interrogations. That Interrogation and Transfer Task Force also issued a set of recommendations to help ensure that the United States will not transfer individuals to face torture.
The President Obama also revoked Executive Order 13440, which had interpreted particular provisions of Common Article 3, and restored the meaning of those provisions to the way they have traditionally been understood in international law. The President ordered CIA “black sites” closed and directed the Secretary of Defense to conduct an immediate review – with two follow-up visits by a blue ribbon task force of former government officials – to ensure that the conditions of detention at Guantanamo fully comply with Common Article 3 of the Geneva Conventions.
Also on his second full day in office, President Obama ordered Guantanamo closed, but closing Guantanamo has proven to be an arduous and painstaking process. Since the beginning of the Obama Administration, until 2010, the U.S. has transferred 57 detainees to 22 different countries, of whom 33 were resettled in countries that are not the detainees’ countries of origin.
During 2009, the U.S. government completed an interagency review of the status of the roughly 240 individuals detained at Guantanamo Bay when President Obama took office. The President’s Executive Order placed responsibility for review of each Guantanamo detainee with six entities –the Departments of Justice, State, Defense, and Homeland Security, the Office of the Director of National Intelligence (ODNI), and the Joint Chiefs of Staff – to collect and consolidate from across the government all information concerning the detainees and to ensure that diplomatic, military, intelligence, homeland security, and law enforcement viewpoints would all be fully considered in the review process. This interagency task force, on which several State Department attorneys participated, painstakingly considered each and every Guantanamo detainee’s case to assess whether the detainee could be transferred or repatriated consistently with national security, the interests of justice, and the U.S. policy not to transfer individuals to countries where they would likely face torture or persecution.
The six entities ultimately reached unanimous agreement on the proper disposition of all detainees subject to review. President Obama orderead that it was not a one-time review; there will be “a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.” Similarly, the Department of Defense created new review procedures for individuals held at the detention facility in Parwan at Bagram airfield, Afghanistan, with increased representation for detainees, greater opportunities to present evidence, and more transparent proceedings. Outside organizations begun to monitor these proceedings.
Legal Authority to Detain
Some have asked what legal basis the U.S. has for continuing to detain those held on Guantanamo and at Bagram. But as a matter of both international and domestic law, according to the U.S. Government, the legal framework is well-established. As a matter of international law, the U.S. detention operations rest on three legal foundations:
The U.S. continues to fight a war of self-defense against an enemy that attacked us on September 11, 2001, and before, and that continues to undertake armed attacks against the United States.
In Afghanistan, the United States works as partners with a consenting host government.
The United Nations Security Council has, through a series of successive resolutions, authorized the use of “all necessary measures” by the NATO countries constituting the International Security Assistance Force (ISAF) to fulfill their mandate in Afghanistan.
As a nation at war, the U.S. must comply with the laws of war, but detention of enemy belligerents to prevent them from returning to hostilities is a well-recognized feature of the conduct of armed conflict, as the drafters of Common Article 3 and Additional Protocol II recognized and as our own Supreme Court recognized in Hamdi v. Rumsfeld.
The federal courts have confirmed the U.S. legal authority to detain in the Guantanamo habeas cases, but the Administration was not asserting an unlimited detention authority. For example, with regard to individuals detained at Guantanamo, the U.S. Governmet explained in a March 13, 2009 habeas filing before the DC federal court –and repeatedly in habeas cases since — that the U.S. is resting its detention authority on a domestic statute – the 2001 Authorization for Use of Military Force (AUMF) – as informed by the principles of the laws of war. The U.S. detention authority in Afghanistan comes from the same source.
As a matter of domestic law, the Obama Administration has not based its claim of authority to detain those at GITMO and Bagram on the President’s Article II authority as Commander-in-Chief. Instead, the Obama Administration has relied on legislative authority expressly granted to the President by Congress in the 2001 AUMF.
Unlike the Bush administration, as a matter of international law, the Obama Administration has expressly acknowledged that international law informs the scope of the U.S. detention authority. Both in the U.S. internal decisions about specific Guantanamo detainees, and before the courts in habeas cases, the Obama Administration has interpreted the scope of detention authority authorized by Congress in the AUMF as informed by the laws of war. Those laws of war were designed primarily for traditional armed conflicts among states, not conflicts against a diffuse, difficult-to-identify terrorist enemy, therefore construing what is “necessary and appropriate” under the AUMF requires some “translation,” or analogizing principles from the laws of war governing traditional international conflicts.
Some commentators have criticized the United States decision to detain certain individuals based on their membership in a non-state armed group. But as the Guantanamo habeas litigation shows, the Obama Administration has defended this position based on the AUMF, as informed by the text, structure, and history of the Geneva Conventions and other sources of the laws of war. Moreover, while the various judges who have considered these arguments have taken issue with certain points, they have accepted the overall proposition that individuals who are part of an organized armed group like al-Qaeda can be subject to law of war detention for the duration of the current conflict.
In sum, the Obama Administration has based the U.S. authority to detain not on conclusory labels, like “enemy combatant,” but on whether the factual record in the particular case meets the legal standard. This includes, but is not limited to, whether an individual joined with or became part of al-Qaeda or Taliban forces or associated forces, which can be demonstrated by relevant evidence of formal or functional membership, which may include an oath of loyalty, training with al-Qaeda, or taking positions with enemy forces. Often these factors operate in combination. While the U.S. Government disagrees with the International Committee of the Red Cross on some of the particulars, its general approach of looking at “functional” membership in an armed group has been endorsed not only by the federal courts, but also is consistent with the approach taken in the targeting context by the ICRC in its recent study on Direct Participation in Hostilities (DPH).
The Obama Administration has made clear both its goal of moving to shift detention responsibilities to the local governments in Iraq and Afghanistan. In the Fall of 2010, DOD created a joint task force led by a three-star admiral, Robert Harward, to bring focus to these efforts, and evidence of his work is the rigorous implementation of the new U.S. detainee review procedures at Bagram, the increased transparency of these proceedings, and closer coordination with the U.S. Afghan partners in our detention operations.