Guantánamo, detainee reengagement and tackling hard questions

Last week, the director of national intelligence (DNI) announced that 116 of the 647 Guantánamo detainees that have been released had returned to terrorist or insurgent activities. Criticism of efforts to release detainees and close the detention center at Guantánamo Bay was immediate and decisive in certain quarters, including more than one member of Congress denouncing President Obama’s “reckless detainee policies” and demanding that the administration “stop freeing terrorists.”

{mosads}There are many reasons for debate and disagreement about detention at Guantánamo, release of detainees, prosecution by military commission and other hot-button issues — whether based on law, politics, morality, strategy or other considerations. A commitment to the rule of law demands that we have these debates, and explore and understand the tensions inherent in detention and other broader efforts to combat terrorism. Unfortunately, these responses to the DNI’s report about detainee reengagement are a perfect example of one of the defining features of the post-9/11 discourse: characterizing counterterrorism as war in the hopes of sweeping many hard questions under the rug.

The critiques suggest that the United States should simply hold all persons involved in terrorism until there is no more terrorism. During armed conflict, states have the authority under the law of war to detain captured enemy personnel without charge until the end of hostilities; as the Supreme Court has explained, detention for the purpose of removing enemy personnel from the battlefield is a fundamental incident of waging war. The individual’s status as a member of the enemy forces is sufficient justification to hold him or her without charge until the end of hostilities.

If you view our counterterrorism struggles solely as a war against a monolithic terrorist enemy, therefore, the idea of releasing detainees before this counterterrorism war is over — enabling them to “fight another day” — seems to be highly problematic.

But terrorism and counterterrorism are not synonymous with war. Some terrorist attacks and counterterrorism responses occur in the context of armed conflict; some do not. Terrorist groups morph, splinter, seek new safe havens, and reinvent themselves as needed. Some individuals are lone-wolf terrorists, copycats or provide critical support to terrorist groups without being members of such groups.

Counterterrorism is complicated. Calling it war does not make it any less so. Not all suspected terrorists can or should be tried in military courts — or for violations of the law of war. Not all suspected terrorists can or should be detained in a military detention facility under a law of war paradigm. And some individuals involved in terrorism, released because of a lack of sufficient intelligence information, a change in the nature and context of the conflict, or policy reasons, may once again seek common cause with those who wish the United States harm. As the reengagement report summarizes, however, most do not.

The past 13 years have highlighted the consequences for the rule of law when the “we’re at war with these people” approach is substituted for a more nuanced application of the many tools of the national security apparatus. When critics call detainee releases reckless because there are still individuals and groups out there posing a threat to the United States, they once again bury the hard questions under rhetoric and hype. In effect, they once again merely kick the proverbial can — how to make the necessary distinctions for principled application of the law and address the concomitant uncertainties — down the road.

The United States has been engaged in an armed conflict with al Qaeda, the Taliban and associated forces, and many of the detainees previously or currently detained at Guantánamo have been or are detained based on membership in one of these groups. This question of membership, or who is the enemy, along with a host of derivative or related questions, is essential to any detention determinations — and yet fraught with uncertainty: Who is part of al Qaeda? How does the decentralization and splintering of terrorist groups affect categorizations of “the enemy”? Which groups are sufficiently associated with al Qaeda to be part of the same conflict? Can one individual be part of more than one terrorist group engaging in the conflict? How do we know when the conflict ends — and could it end for one terrorist group before others? If the conflict is generational or longer, should the same rules for detention authority still apply? And how should we think about all of these questions as the U.S. withdraws from Afghanistan, ramps up operations against the Islamic State in Iraq and Syria (ISIS) or potentially engages with other terrorist groups?

Thirteen years after the first detainees arrived at Guantánamo Bay, these questions persist and clear answers remain elusive. But answers are essential to ensuring a rule of law framework for detention of suspected terrorists — regardless of whether such persons fall within the armed conflict paradigm, and whether such persons are members of al Qaeda or associated groups. The application of detention authority in an environment fraught with uncertainty, nuance and the challenges of intelligence gathering and sharing is — both legally and factually — extremely complex. Critiques based on a one-size-fits-all framework merely obscure these factors and offer little chance for nuanced discourse about how to address the complicated determinations that are, for now, most definitely here to stay.

Blank is clinical professor of law and director of the International Humanitarian Law Clinic at the Emory University School of Law.