Capture and Detention of Terrorists - Module 2 of 5
Module 2: Capture and Detention of Terrorists
In the nearly two-decade long “War on Terror,” the United States military has developed two methods of neutralizing enemy combatants. The first is targeting and killing. The second is capture and detention. There are two main justifications for “capture and detention”. First, a detained enemy combatant is removed from the fight and cannot engage in further attacks. Second, a captured detainee can be questioned by authorities to gather information which may prevent his compatriots from engaging in future attacks. In this module, we will discuss capture and detention in armed conflict and examine the rights of detainees, including the conditions and allowable duration of detention. Furthermore, we’ll learn about detainee interrogation and how detainees are prosecuted and punished for their illegal activities by military commissions and federal courts.
Lawful and Unlawful Combatants
Capturing and detaining enemies is the right of all parties to armed conflicts. Combatants are subject to capture and detention, and the legal authority to capture and detain is identical across all status categories. A captured combatant is classified as a “detainee” until further determination of his status. Each is subject to search, segregation, rapid transfer to field detention centers, safeguarding and other procedures to identify and control them consistent with the law of armed conflict.
The rights and duties of captured and detained combatants are determined in part by their status, either as a lawful combatant or unlawful combatant.
When the United States military captures and detains a lawful combatant, who is a uniformed member of the armed forces of a party to an armed conflict who carries arms openly and operates under a responsible chain-of-command, the combatant is called a prisoner of war. By contrast, when the military captures and detains an unlawful combatant, he does not enjoy legal status as a prisoner of war. Most terrorists are classified as unlawful combatants because of their individual conduct on the battlefield and because of their membership in groups that do not to wear uniforms, openly carry arms or serve under legally responsible chains of command.
After the September 11th attacks, the United States determined that because al-Qaeda and the Taliban members do not wear identifying insignia, carry arms openly, or obey the law of armed conflict, every member of these terrorist groups is an unlawful combatant regardless of the member’s conduct at any given time.
Moreover, a person need not conduct military activities or violence to be considered an unlawful combatant and prosecuted. The federal “material support statute” criminalizes giving money, training, equipment, personnel, transportation, services, physical assets, or “expert advice or assistance” to terrorists. In United States v. Mehanna, the defendant, an American citizen and self-styled “media wing” of al-Qaeda in the United States, was convicted of providing material support to al-Qaeda by translating, interpreting, and distributing materials promoting holy war against the United States.
Methods of Capture and Detention
There are three processes for capture and detention of combatants. The first is capture on the battlefield. Under the law of armed conflict, soldiers don’t have to capture an enemy combatant, nor do they have to provide enemy combatants an opportunity to surrender before targeting and killing them on the battlefield. However, under humanitarian principles, soldiers do have a duty to accept offers of surrender and to capture, rather than kill, enemy combatants clearly and genuinely attempting to surrender. Killing individuals attempting to surrender, whether they are lawful or unlawful combatants, is a war crime, as is pretending to surrender to gain an advantage over capturing forces.
The second process for capture and detention is rendition, where a combatant located in another country is captured to interrogate or prosecute him without the prior authorization of a judge. Under international law, a war crimes suspect is subject to rendition. The most famous rendition was of the Nazi Adolf Eichmann, one of the primary architects of the Holocaust, who was captured in Argentina and then moved to Israel and tried there for war crimes, for which he was eventually executed.
In the War on Terror, U.S. military and Central Intelligence Agency personnel have used rendition to capture known or suspected terrorists and send them to the United States or other countries for interrogation or trial. These unlawful combatants have been captured in houses, on streets and at border crossings around the world. For example, Khalid Sheikh Mohammed, the high-level al-Qaeda operative who helped plan the September 11, 2001, attacks, was captured by the Pakistani government in a residence in Pakistan. American military officials also abducted Abu Omar, a radical Muslim imam, on the streets of Milan.
American courts allow rendition even though circumstances surrounding its use are often classified. For example, in the case El-Masri v. Tenet, Macedonian intelligence authorities detained suspected al-Qaeda terrorist Khaled el-Masri, a German citizen of Lebanese origin in Macedonia and then transferred him to a CIA-run Afghani prison to be interrogated. While in Afghanistan, CIA officials used advanced interrogation techniques on him for more than three weeks. After his release, El-Masri sued, claiming violation of constitutional and international legal rights. The Fourth Circuit dismissed El-Masri’s claims on the ground that U.S. assertion of the state secrets privilege protected intelligence sources and methods used and precluded judicial review of El-Masri’s rendition.
The third process is extradition, the judicially approved procedure to detain and transfer a person from one country to another for prosecution. Provided that an alleged offense is a crime in both the requesting and the transferring countries, and an extradition treaty is in place – an extradition request is usually granted.
An example of a recent successful extradition took place in 2017. Spain honored an American request to extradite Ali Charaf Damache, an Algerian-born Irish citizen who was a suspected al-Qaeda terrorist, to the United States to stand trial in federal court in Philadelphia. He had been indicted in 2011 in the Eastern District of Pennsylvania on one count of conspiracy to provide material support to terrorists and one count of attempted identity theft to facilitate an act of international terrorism. Here, the United States and Spain had an international extradition treaty, originally entered into in May of 1970, which called for the surrender of “prisoners to stand trial for crimes against the laws of the requesting state.”
Detainee Rights and Conditions of Detention
The rights of detainees and conditions of detention are status-based and determined by treaties, statutes, and caselaw. Prisoners of war, as lawful combatants, comprise the most privileged category. The Third Geneva Convention provides that upon capture, prisoners of war are entitled to food and accommodations equivalent to soldiers of the capturing army, to recreation, to correspondence, to be paid, and, most importantly, to immunity from prosecution for all otherwise lawful attacks during armed conflicts.
Even unlawful combatants are entitled to basic human rights. Article Three of both the Third and Fourth Geneva Conventions provides that unlawful combatants cannot be subjected to “cruel treatment and torture,” “humiliating and degrading treatment,” or punishment not ordered by a judge.
Still, hundreds of unlawful combatants have had their humanitarian rights violated and have been subjected to inhumane treatment during detention. The U.S. has held detainees at secret prisons or “black sites” on naval vessels and in other countries to keep detainees beyond the reach of judicial intervention. A 2004 report published by United States Army Major General Antonio Taguba found that at the Abu Ghraib prison in Iraq in 2003, U.S. soldiers had committed serious violations of the Geneva Conventions against unlawful combatants in detention. In response, U.S. military authorities swiftly prosecuted, convicted, and punished those responsible, including the most senior commander.
The interrogation of detainees is also status-based. The Third Geneva Convention provides modest but important humanitarian guarantees for prisoners of war, several of which pertain to interrogation tactics. Specifically, it requires that all prisoners of war “must . . . be humanely treated.” Additionally, a prisoner of war is “entitled . . . to respect for their persons and their honor.” During a prisoners of war’s interrogation, he is only required to provide his name, rank, service number and date of birth.
Prior to 2004, unlawful combatant interrogation wasn’t restricted by such rules or regulations. However, following the 2004 Abu Ghraib disclosures, Congress passed the Detainee Treatment Act of 2005 which provided that “detainees held in United States military custody are entitled to the protections of the Geneva Conventions” during their interrogations. The Act’s passage outlawed harsh interrogations of detainees by the military, including “coercive” or “enhanced” interrogation techniques such as:
· sleep deprivation;
· noise stress;
· exposure to temperature extremes;
· dietary manipulation;
· prolonged standing; and
· simulated drowning.
The United States government had previously justified using these methods, arguing that they helped extract valuable information from terrorists, helped to prevent terrorist attacks and enabled the killing of Osama bin Laden. Now, however, adopted laws and presidential orders prohibit the use of these techniques by the Armed Forces as well as by the CIA.
Duration of Detention
All detainees, regardless of combatant status, may be detained without trial until “cessation of active hostilities.” However, should hostilities persist, a detainee can lawfully be held indefinitely. In addition, a detainee subject to prosecution for, or serving a sentence after conviction of, a criminal offense, whether committed before capture or while in detention, can be held longer than the end of hostilities.
In the war on terror, it’s been difficult to determine when there will be a “cessation of active hostilities.” As a matter of policy rather than legal obligation, the U.S. has released detainees it has chosen not to prosecute after a determination they no longer pose a threat to the United States. Although 40 detainees designated too dangerous to release remain in indefinite detention at Guantanamo Bay Naval Base as of June 2018, nearly 800 have been freed over the past 15 years.
Prosecution and Trials of Accused Terrorists
Generally, prisoners of war are immune from prosecution by a detaining power. However, combatant immunity is not absolute. Rather, it extends only to pre-capture conduct related to the armed conflict that is consistent with the law of war. The third Geneva Convention limits the prosecution of a prisoner of war to prosecution for war crimes and for crimes that have no connection to the state of war.
The only entity that can prosecute a prisoner of war is a judicial tribunal similar to a court-martial but lacking some protections afforded to members of the prosecuting country’s armed forces who are charged with crimes.
By contrast, an unlawful combatant can be prosecuted for attacks he carries out during an armed conflict. Unlawful combatants can be prosecuted simply for being unlawful combatants, for pre-capture war crimes, for crimes committed during detention and for acts criminalized under civilian law. The preeminent American case in this field is the 1942 decision, Ex parte Quirin, where eight Nazi saboteurs landed by submarine on the coasts of New York and Florida and planned to attack U.S. industrial production centers during World War II. They had, in fact, partially worn military uniforms so that they could claim to be prisoners of war if captured.
They were captured and subjected to trial by military commission. The saboteurs petitioned for civilian trials, alleging they were prisoners of war who had planned to attack lawful military targets. The Supreme Court disagreed, holding that the saboteurs, as unlawful combatants, could be tried for war crimes by a military commission based on an executive order, statutes, the Constitution and the fact that sabotage is a war crime. After the ruling and a military trial, six of the eight were sentenced to death, while the other two (who had cooperated with the government) were given long prison sentences.
A military commission is a court set up by military commanders in the field to try persons accused of certain offenses during war. They may also try persons for ordinary crimes during periods of martial law or military occupation, where civil courts are unable to function. A military judge presides over the trial, ruling on issues of law and evidence, and a panel of service members decides issues of fact and guilt or innocence. The panel can range from five members in lesser cases to at least 12 in trials involving potential death sentences.
In 2006, President George W. Bush signed into law the Military Commissions Act, to govern military commission trials of unlawful combatants. The Act created a new system of military commissions and authorized them to try certain non-citizens before military tribunals. Under the Act, military commissions could try unlawful combatants for traditional war crimes and an array of terrorism-related crimes that had previously been handled by criminal courts.
The most questionable aspect of the 2006 Act was that it suspended a detainee’s right to habeas corpus, which is the Constitutionally protected right to challenge one’s detention in a court of law. In June 2008, the Supreme Court reached a decision in Boumediene v. Bush, which found certain provisions of the Act unconstitutional. There, the U.S. government classified Algerian native Lakhdar Boumediene as an enemy combatant in the war on terror and detained him at Guantanamo Bay. Boumediene filed a petition for a writ of habeas corpus, alleging violations of the Constitution's Due Process Clause and international law. The Supreme Court held that Guantanamo Bay detainees could not legally be deprived of liberty without due process of law and that a detainee can challenge his detention in a federal court.
In response, Congress passed the 2009 Military Commissions Act, which replaced the 2006 version. The 2009 law retains the basic structure of the existing commissions but excludes admission of statements obtained through torture or through cruel, inhuman, or degrading treatment. Additionally, the law permits appeals to the U.S. Court of Military Commission Review, with further appeals to the federal appeals court in Washington and potentially to the Supreme Court.
Under the new law, defendants have the right to attend their entire trials and examine all evidence presented against them, to cross-examine witnesses against them and to call their own witnesses. Defendants may be excluded from a commission proceeding for being disruptive, but not to prevent them from being present during the presentation of classified evidence.
Over the last decade, federal civilian courts have become the primary forum for prosecuting unlawful combatants on terrorism charges. Since September 11, 2001, federal civilian criminal courts have convicted more than 650 people on terrorism-related charges, while military commissions have convicted only eight. Perhaps the most notorious federal civilian criminal court defendant was Dzhokhar Tsarnaev, whose bombing attack killed participants in the 2013 Boston Marathon. He was tried and sentenced to death by a federal judge in 2015.
There are two issues that often arise when prosecuting a detainee in a federal court. First, rules of evidence and procedure are more favorable to terrorism defendants in a federal court than in a military commission.  Terrorism defendants in federal court can attempt to force a difficult choice on the government by questioning the source of prosecution evidence. Answering these questions, which may be necessary during a civilian court proceeding in accordance with the rules of procedure and evidence, could force the government to reveal in open court the classified sources and methods it used to discover defendants’ identities and activities — potentially endangering foreign informants and covert U.S. intelligence personnel whom defendants’ fellow terrorists may attempt to kill, or to help other terrorists avoid capture. This maneuver is known as “graymail.” In fact, courts have released accused terrorists when the government protected counterterrorism methods along with the names of informants and U.S. military and CIA personnel rather than continue prosecutions.
Second, the government cannot admit evidence acquired by torture in a federal court, based on provisions in U.S. and international law. This, for example, explains why the mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, has not been tried in federal court and instead is scheduled to be tried before a military commission (as of June 2018). Much of the information the government gained from Mohammed was the result of enhanced interrogation techniques. In March 2003, for example, he was waterboarded 183 times.
In our next module, we will discuss U.S. counterterrorism efforts under the law enforcement paradigm, including the legal definition of terrorism and the roles of the executive branch, Congress and the judiciary.
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 Int’l Committee of the Red Cross, 3 Geneva Convention Relative to the Treatment of Prisoners of War 44 [hereinafter 3 Geneva Convention Relative to the Treatment of Prisoners of War].
 Int’l Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12 August 1949 at 32-33 [hereinafter Protocol Additional to the Geneva Conventions].
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18 U.S.C. § 2339A (2012).
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 Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739 (2007); 26 U.S.C. 2241; Exec. Order 13491, Ensuring Lawful Interrogations, 74 Fed. Reg. 4893 (Jan. 27, 2009).
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 Protocol Additional to the Geneva Conventions, supra note 5, at 33-34.
 Int’l Committee of the Red Cross, 4 Geneva Convention Relative to the Protection of Civilian Persons in Time of War 52 (1958); Protocol Additional to the Geneva Conventions, supra note 5, at 37; Ex parte Quirin, 317 U.S. 1, 31 (1942).
 Al Bahlul v. U.S., No. 11-1324, 840 F.3d 757 (D.C. Cir. 2016), aff’d, 840 F.3d 757.
 Ex parte Qurin, 317 U.S. 1, 21-22 (1942).
 Jennifer Elsea, Congressional Research Service, The Military Commissions Act of 2009
(MCA 2009): Overview and Legal Issues 6 (August 4, 2014).
 Id. at 17.
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 Boumediene v. Bush, 553 U.S. 723, 792 (2008).
 Warren Richey, Obama Endorses Military Commissions for Guantanamo Detainees, Christian Science Monitor, (Oct. 29, 2009), https://www.csmonitor.com/USA/Justice/2009/1029/p02s01-usju.html.
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 U.S. v. Dzhokhar A. Tsarnaev, 2015 U.S. Dist. LEXIS 31159 (D. Mass. 2015) (No. 13-CR-10200-GAO); Ann O’Neill, et al., Boston Bomber Apologizes, Gets Death Sentence, CNN, (June 25, 2015), https://www.cnn.com/2015/06/24/us/tsarnaev-boston-marathon-bombing-death-sentencing/index.html.
 Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, 17 Eur. J. Int’l. L. 349 (2006); Boumediene v. Bush, 553 U.S. 723 (2008); Abdah v. Obama, 708 F. Supp. 2d 9 (D.C. Dist. 2010).
 James Renwick & Gregory Treverton, The Challenges of Trying Terrorists as Criminals 17-25 (2008), https://www.rand.org/content/dam/rand/pubs/technical_reports/2008/RAND_CF249.pdf.
 Department of Defense Office of Military Commissions, Cases, 9/11: Khalid Shaikh Mohammad et al. (2), at http://www.mc.mil/CASES/MilitaryCommissions.aspx.