Addressing the Guantanamo 'Legacy Problem': Bringing Law-of-War Prolonged Military Detention and Criminal Prosecution into Closer Alignment
7 Journal of National Security Law and Policy 527 (2014).
60 Pages Posted: 24 Apr 2014 Last revised: 7 Mar 2015
Date Written: April 21, 2014
The U.S. government claims authority under the law of war to detain enemy belligerents captured in the war against the Taliban and al Qaeda for the duration of the conflict. Enemy belligerents in this war are generally regarded by U.S. authorities as unprivileged under the Geneva Conventions, and acts they commit in furtherance of the war are therefore likely to be crimes under the law of war and/or under U.S. domestic law. Regarding those belligerents who, because they are considered dangerous, have not qualified for release and transfer to another country, the government has had two choices — to detain them in military custody on a prolonged basis (for the duration of the conflict), or to prosecute them for crimes they are alleged to have committed.
President Obama has stated a strong preference for the criminal prosecution option. But for many of the detainees, prosecution is not feasible — for a variety of reasons. These detainees are likely to remain in prolonged detention. The President has described the continuing detention of these individuals as the "legacy problem," i.e. prolonged detention cases left over from the post-9/11 period.
The purpose of this paper is to address the legacy problem, in part by taking into account the fact that all of the long term detainees, both those whom it is infeasible to prosecute as well as those who can be prosecuted, can be said to have engaged in culpable criminal activity. A primary goal is to reduce the inequality between the two paths — criminal prosecution or prolonged military detention — by bringing law of war detention and criminal prosecution into closer alignment. Under the present system, choice between the paths appears to result in unequal treatment, i.e., in many cases, criminal prosecution and the imposition of a fixed term sentence for those who are convicted versus what looks like an indefinite period of detention in military custody for the other cohort (subject to the possibility of release through a periodic review process) — even though both cohorts are alleged to have engaged in culpable criminal conduct. A revised approach should, while paying heed to national security interests, not only decrease this apparent difference in treatment but also increase the chances that most of the detainees in indefinite detention might be released short of a lifetime in custody and thus give them some reasonable hope that their detention may end at some point.
Progress toward these several goals, which are closely related, can be achieved by tinkering with, and adding to the existing approach, taking into account the special features of a war against a terrorist organization — by introducing into the indefinite detention track some fixed-term criminality attributes plus a standard to be applied for continued indefinite detention, while adding to the criminal prosecution/fixed term imprisonment track a similar standard governing the possibility of a return to military custody.
Keywords: Guantanamo, military detention, criminal prosecution, war on terrorist organizations
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