On April 5, the Defense Department quietly sent a report to Congress indicating how it intends to implement a new law requiring lawyers and judges for detainees held in long-term U.S. military custody. As expected, DoD largely wrote the new rights out of existence, ensuring they'd be accorded to few, if any, detainees. What's more, it severely limited the scope of judicial review even that small number will receive.
Originally intended to apply to the prisoners held by the United States at the Bagram Air Base in Afghanistan, Section 1024 of the National Defense Authorization Act is now more likely to apply to some future category of indefinite detainees held by the U.S. government. And therein lies the problem.
Just three months after President Obama signed the NDAA in December, the United States negotiated with Afghanistan to transfer most of the 3,200 detainees imprisoned at the Detention Facility in Parwan, as the U.S.-run prison at Bagram is called, to Afghan custody within six months. That transfer agreement doesn't mention anything about what sort of review those detainees will get from the Afghan authorities -- or, for that matter, whether they'll get any sort of hearing at all. Because there isn't an indefinite detention law in Afghanistan spelling out the grounds for detention or any entitlement for due process, those prisoners could end up stuck in an Afghan prison for many more years without charge or trial.
The new Defense Department regulations obviously won't apply to them. But they may apply to some of the 50 non-Afghan detainees who remain at the U.S.-run prison, and to any new suspected insurgents the U.S. military may capture in the future.
That's the scary part. DoD has just taken the opportunity to ensure that if the administration decides its "war on al Qaeda, the Taliban and associated forces" continues after the withdrawal of troops in Afghanistan, it won't have to provide anyone it captures outside the United States a meaningful review of the grounds of their detention for at least three years. Even then, the military commander in charge retains the ultimate authority to decide whether the detainee is dangerous and must remain imprisoned.
Here's how it works. According to the new regulations:
The combatant commander with responsibility for the theater of operations in which the unprivileged enemy belligerent is detained will ensure that a determination by the DRB or analogous review that the 1024(b) process is applicable is made as soon as practicable but not later than 18 months after the detainee is captured by, or transferred to the custody and control of, the Department of Defense. Additionally, the combatant commander will ensure that a Section 1024(b) review is conducted as soon as practicable after such a determination is made, but not later than 18 months after such a determination is made.
Eighteen months plus 18 months equals three years. So any newly captured suspect is not entitled to a hearing by a military judge and represented by military defense counsel until three years after his initial detention.
A military judge will conduct a hearing for the purposes of determining whether the detainee is a covered person as defined in subsection (b) of Section 1021 of the Act. The review will be limited to this status determination; it will not include an assessment of the level of threat the detainee poses, nor will it serve as a substitute for the judgment of the combatant commander as to the appropriate disposition of a detainee lawfully detained by the Department of Defense.
In other words, the judge will decide only if the suspect is appropriately classified as an "unprivileged enemy belligerent" -- that is, any person "who was part of or substantially supported al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners." The judge will not decide whether that person actually poses a threat to U.S. forces. Yet under international law, that's a critical part of determining whether someone can be lawfully detained in a war against insurgent groups. That critical determination will continue to be made secretly by a military commander in the field, not by the more neutral judge following an open hearing.
Someone who did laundry, cooked meals or provided medical assistance for a member of al Qaeda, the Taliban or unidentified "associated forces" could therefore continue to be detained indefinitely even after his judicial review if the commander deems him dangerous. And the commander doesn't have to explain that decision to anyone.
All in all, this doesn't sound like much of a step forward, or out of, indefinite U.S. military detention.
The Obama administration had an opportunity to make clear that it takes due process rights and international law seriously, and that, as the war in Afghanistan winds down, it plans to bring indefinite military detention without meaningful review, charge, or trial to an end. It just passed up that opportunity.