Transitional Mental Health Services for Post-9/11 Detainees

Abstract:     
It is undisputed that post-9/11 detainees released by the U.S. government have experienced significant psychological deterioration as a result of their confinement in American custody. The question becomes whether, and to what extent, the U.S. government may have an obligation to provide mental health services to detainees who are factually innocent and who are shown to occupy a troubled mental state. The government may have a moral responsibility to furnish compensatory mental health services to detainees whom it wrongfully detains, and there may be a national security imperative for the government to ensure that the unstable do not enter the "battlefield" and are not employed by terrorist elements for recruitment purposes.

This Article explores whether there is any support, in domestic or international law, for a requirement that the U.S. government provide mental health services to factually innocent detainees housed in Guantanamo or other American bases. The Article first provides an overview of evidence indicating that detainees held and/or released by the government have suffered serious mental health issues; second, examines possible sources of law for a governmental duty to furnish mental health services to factually innocent detainees in U.S. custody; and third, argues that there is a plausible legal foundation, from these sources, for the provision of mental health services to these detainees.

The mental health of post-9/11 detainees has been largely overlooked, if not accepted as a tolerable consequence of their confinement and detention status. This Article suggests that such neglect may not be legally sustainable, and that the law instead may compel the United States to restore the mental condition of post-9/11 detainees. In providing these services, the United States may not only comply with applicable legal demands and ensure that detainees receive humane treatment, but may also elevate its moral position in the world and further its pressing national security interests in these perilous times.

Keywords: detainees, mental health, psychology, national security, Guantanamo, Bagram

working papers series