Indefinite Detention under the Laws of War
Jenks, Chris, Jensen, Eric Talbot, Stanford Law & Policy Review
While campaigning for the Presidency in 2007, then-candidate Barack Obama stated, "I have faith in America's courts and I have faith in our JAGs. As president, I'll close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists." (1) Almost immediately after entering office, now-President Obama issued three Executive Orders intended to carry out these campaign promises. (2)
The first was Executive Order 13491, Ensuring Lawful Interrogations. (3) This order required that all interrogations by any federal "officer, employee, or other agent of the United States Government" (4) comply with Army Field Manual 2-22.3 (5) and Article 3 of the 1949 Geneva Conventions. (6) The second was Executive Order 13492, Review and Disposition of Individuals Detained At the Guantanamo Bay Naval Base and Closure of Detention Facilities. (7) This order created two task forces to conduct "a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantanamo, and of whether their continued detention is in the national security and foreign policy interests of the United States and in the interests of justice," (8) and ordered the terrorist detention facility at Guantanamo be closed within a year. (9) President Obama stated that the task forces were intended to provide him "with information in terms of how we are able to deal [with] the disposition of some of the detainees that may be currently in Guantanamo that we cannot transfer to other countries, who could pose a serious danger to the United States." (10) The third was Executive Order 13493, Review of Detention Policy Options. (11) This order also established a task force, this one to provide an overall review of the U.S. detention policies and then issue a report within 180 days. (12)
In response to Executive Order 13492, the two task forces issued their respective reports. One of the task forces, charged with reviewing the conditions of confinement at Guantanamo, (13) issued what is commonly referred to as the Walsh Report. (14) The other task force was charged with "select[ing] lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice" for the disposition of those detainees for whom neither transfer nor prosecution was envisioned. (15) This task force recommended that "nearly 50 of the 196 detainees at the U.S. military prison at Guantanamo Bay, Cuba, should be held indefinitely without trial under the laws of war." (16) The recommendation for indefinite detention governed "under the laws of war" is significant. Though there are numerous proposals for eventual disposition of the Guantanamo detainees, (17) some of which contemplate various forms of legal detention and confinement, (18) none have proposed indefinite detention under the laws of war, as recommended by the task force. (19)
The law of war, or law of armed conflict (LOAC) as it is often called and set forth in both customary and conventional law such as the Geneva Conventions, provides a clear framework for detention for the duration of hostilities. (20) Historical practice has generally involved detention for much shorter periods of time than many at Guantanamo have already been detained. There are some notable exceptions, however, including Israel, (21) Malaysia, (22) Algeria (23) and Morocco, (24) where fighters were detained for extended periods of time, including more than twenty years in the case of Morocco. (25) However, the vast majority of detentions have been for much shorter durations. Surprisingly, considering the number of armed conflicts that have involved detention, there is no common international practice concerning long-term or indefinite detention upon which states may rely.
For those at Guantanamo held after criminal prosecution, or for whom prosecution won't occur, and who have unsuccessfully petitioned for a writ of habeas corpus (or not submitted a petition at all), the question then becomes, assuming that long-term and potentially indefinite detention of unlawful enemy combatants (or unprivileged enemy belligerents) (26) will be governed by the law of war, what should that detention look like? …