Jason Cowling - Policy Brief

Cowling 1 Jason W. Cowling Dr. Kaltenthaler POLSC 3700: 445 12 Dec 2008 Policy Brief: What should be done with Captured Jihadists? The fundamental driver in capturing potential enemy combatantsis information. Information is economic and military currency to States. This is the factor that interrupts the best practices, conventions and laws for the treatment of detainees, issued and monitored by the United Nations and its member States. So the fundamental and complex dichotomy between national security interests and the captured individual(s) rights frames the public perception, treatment interrogation standards, legal status, and repatriation of captured individuals. Further, there is a likely proportional relationship between increasing national security threat levels and the willingness to abandon codified standards of detainee treatment. These crisis periods are also characterized by Presidential agenda-setting, lack of transparency, and the curtailing of civil rights. So any detainee policy recommendations must take into account the reality of the above mentioned dichotomy and therebytake a heuristic approach to mitigating violations and threats to national security. The confluence of cultures and religion, coupled with globalization, the difficulty of living in isolation and other mid-eastern struggles, comprise a difficult framework for policy recommendations. But all policy recommendations

Cowling 2 must be woven in immediacy but almost and congruously surrogate to these larger issues. Since times of intense national security have historically been sparse, the best time to create policy to achieve the desired balance is during non-crisis periods, or sometimes in the immediate periods following egregious human rights violations, or events that generally trigger high attention to surrounding policies and actions. The trending rise in power of the Executive Branch and the DOJ’s Office of Legal Council1 are a powerful combination, existing prior to 9/11 but jettisoned after the event. The judicial and legislative branches haven’t seen this power surge and the result is disproportionally high power to the Executive function. Congress needs more than the power of the purse and the judicial branch needs to be independent of, not tethered to White House ideology. While the Executive Branch does require significant power in the execution of the role of the Commander-in-Chief function, its' judicial and lawmaking powers are dangerous without Congressional and Judicial oversight. So as an initial recommendation - the balancing of powers between branches will mitigate sweeping policy changes and also force a more bipartisan, and constitutionally balanced decision making environment. This balance must not sway too far, however, into the oversight realm as that can lead to political inertia and the GWOT demands nimbleness. Terrorism is likely an inevitable phenomenon, so the goal is to increase 1

DOJ Office of Legal Council. Sometimes referred to as the most powerful group in government. Website: http://www.usdoj.gov/olc/.

Cowling 3 the time between attacks, which softens the threat level and thereby results in more tempered military responses, which result in less media coverageand public backlash. As Philip Purpuranotes, “By bringing their struggle into the international arena, a low-budget, spectacular attack, at a symbolic or wellknown target, can reap enormous, immediate publicity. Such political violence has been termed asymmetrical warfare” (Purpura25). These initial recommendations serve as a framework from which all specific policy recommendations for the treatment of captured jihadists should be drawn. The highest level standards relevant to the treatment of jihadists are the “Geneva Conventions Relative to the Treatment of Prisoners of War” 2, and the “United Nations Convention against Torture” (CAT)3. While these documents are widely recognized and ratified, it’s important to note that from it the semantic, or interpretive stance of member nations are diverse and largely function with respect to, but not with outright adherence to the standards. The semantics surrounding the treatment of enemy combatants, its intra-governmental and transnational differences, always assure an interpretive medium for members to act as they deem necessary with regard to detainees. This strain is necessary for nations to protect their national security interests, yet must be mitigated appropriately. Without proper balance between adherence to 2

Geneva Conventions Relative to the Treatment of Prisoners of War: http://www.unhchr.ch/html/menu3/b/91.htm 3

UN CAT: http://www.unhchr.ch/html/menu3/b/h_cat39.htm

Cowling 4 codified standards, and national security interests, a dissembling effect occurs, leading to declining trust, public opinion and declining security. The example of declining security is especially true in the case of captured jihadists, as humanitarian breaches are exploited to agitate and recruit new combatants. The US should go beyond ratifying the convention in spirit, and codify into law the language of the Convention. All US DOJ interpretations which are related to this subject matter should be repealed, and no sunshine clauses for detainees captured prior to these implementations should be permitted. To further improve the legal situation surrounding captured jihadists, all military tribunals and The Military Commissions Act of 20064, should be eliminated and all current prisoners should have their cases reviewed and adjudicated in the Federal Court system. These actions will dramatically reduce the need for indefinite holding of detainees, preserve civil rights, and improve public perception of US policies. The Federal court system has proven better equipped to handle detainee cases. According to a Human Rights First report, "Terrorist Cases Should be Tried in U.S. Federal Courts.,5" U.S. Federal courts have adjudicated well over one hundred terrorists cases since 2001, as opposed to less than a dozen in military courts.

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Military Commissions Act of 2006: http://thomas.loc.gov/cgi-bin/bdquery/z?d109:s.3930:

Human Rights First Report: http://www.humanrightsfirst.org/blog/torture/2008/11/terroristcases-should-be-tried-in-us.html

Cowling 5 Another generally applicable standard across the detainee spectrum is transparency, to which ratifying the United Nations OPCAT6is a good first measure. OPCAT provides for inspections and standards for detention facilities. To date the US hasn’t ratified this convention. This is one of several recommended steps to criminalize rather than militarize the status of captured jihadists. Transparency also increases global trust and thereby global public perception improves as does support for foreign policy initiatives. Ratifying OPCAT does present national security issues, having foreign representatives inside of classified environments requires due diligence and costly reshaping of those environments’security posture. And generally the military does not want to be answerableto outside interests. The indicators point to a federal-civilian handling of detainees would be prudent, OPCAT is more viable and affordable under the federal-civilian model as military security concerns and costs would be greatly reduced, as would inspectors’ access to military facilities. Lowered social status of enemy combatants may also decrease the glorified image of holy warrior into common criminal. This status change may lessen the appeal and thereby recruiting ability of terrorist groups. Along with these measures, the closing of offshore detention facilities like Guantanamo Bay is vital to the GWOT. Besides the well-known photographs and massive public backlash, these facilities have been arguably less than beneficial in terms of information gathering and national 6

OPCAT: http://www2.ohchr.org/english/law/cat-one.htm

Cowling 6 security. Closing the facilities along with the change in status of enemy combatants to common criminals may serve to downplay a vital factor for terrorist groups, their ability to successfully agitate Western nations and exalt their perceived societal status. Creating a single, universally applicable, internationally acceptable methodology for interrogation practices is another viable policy recommendation. The discordance between interrogation programs across the law enforcement, military, and other entities creates legal issues. These legal issues delay the prosecution of detainees, have frequent corrupted chains of evidence and generally present a shadowy public image of our prosecution of suspected terrorists. While this policy will limit the techniques of educing information (EI) they will also limit the opportunity for abuse. Limiting the techniques has been largely been cast as secondary to national security interests. But as studies such as the National Defense Intelligence College’s Educing Information – Interrogation: Science and Art- Foundations for the Future have shown, harshness of technique isn’t parallel with amount and quality of educed information. This study also advocates transparency for the study of interrogation. Interrogation needs public dialogue, not shadowy treatment. Abuse hasn’t proven to educe more, or more valuable information so a more humane and at the same time efficacious methodology will eliminate legal issues, improve global US public perception and further mitigate anti-Americanism. As mentioned above, this option will always be overridden in times of extreme national crisis. The more spread

Cowling 7 out each crisis is, the less frequently you abuse your standards, protect civil rights and improve perception. The U.S. is a good example, having codified a definition of torture, but through DOJ interpretations, executive orders and intra-governmental varying definitions, the clarity of standards is obfuscated and opportunities for abuse increase. A good example is the 2002 Bybee memo7 and subsequent DOJ 2004 memo in response, “MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL." LEGAL STANDARDS APPLICABLE UNDER 18 U.S.C. §§ 23402340A. 8

The Bybee memo interpreted the US codified definition of torture, 18

U.S.C. §§ 2340-2340A9

in response to a CIA request, to include all manner and

degree of torture as acceptable. Death, and the threat of death are examples of techniques the memo deemed in concert with CAT. The Memorandum released later in 2004 was a revocation, except that it was actually a sustaining of the 2002 memo. These abuse opportunities also increase in times when the executive branch has control over the agenda. September 11, 2001 led to swift and sweeping policy shifts that have arguably contributed to the exacerbation of global terrorism, rather than its intended elimination. Once the decline of public opinion on the Global War On Terrorism began, a similar backlash arose against the unlawful treatment 7

Bybee Memo Website:

http://www.washingtonpost.com/wpsrv/nation/documents/dojinterrogationmemo20020801.p df 8

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Daniel Levin Memorandum: http://www.usdoj.gov/olc/18usc23402340a2.htm#n_7_

US Code Definition of Torture: http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002340----000-.html

Cowling 8 of detainees. This backlash initiated a string of congressional and judicial inquiries into policies surrounding enemy combatants; interrogation and torture, judicial rights, Supreme Court Adjudications, and public perception at home and abroad. While the language and negative attention toward these issues grows in opposition, little has been taken to remedy or cease these policies. Cases like Hamdan v. Rumsfeld10 that declared illegal the military CommissionsAct, have been summarily ignored. BOUMEDIENE

ET AL.

v. BUSH, PRESIDENT OF THE

UNITED STATES, ET AL.11, is another example of an ignored repeal of the Military Commissions Act, stating that prisoners have a right to be tried in a civilian court.

Policy recommendations that improve the issues surrounding captured jihadists will benefit U.S. interests, foreign and domestic perception, and leadership stanceon humanitarian treatment. However, it is always going to be that a struggle over the value of information in national security issues vs. the value of individuals or groups civil rights will result in national security interests at their strongest in times of crisis. It is within this dichotomy or margin of decision-making that interrogation may become torture, and may proceed to unravel the same rights it tortures to protect.

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Hamdan v. Rumsfeld text: http://www.cbsnews.com/htdocs/pdf/Hamdan_vs_Rumsfeld.pdf

Boumediene v. Bush text: http://www.scotusblog.com/wp/wp-content/uploads/2008/06/061195.pdf

Cowling 9

Works Cited "BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE UNITED STATES, ET AL." SCOTUS Blog. 12 July 2008. Supreme Court of the United States. 9 Dec. 2008 . Bybee, Jay S. "MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL *Bybee Memo*." WashingtonPost.com. 1 Aug. 2002. Office of Legal Council - DOJ. 7 Dec. 2008

Cowling 10 . "Convention against Torture and Other Cruel, Inhuman." United Nations. 10 Dec. 1984. United Nations Office of the High Commissioner for Human Rights. 7 Dec. 2008 . "Definitions: Torture." U.S. Code Collection. 03 Jan. 2007. Cornell University Law School. 7 Dec. 2008 . Elsea, Jennifer K. "Lawfulness of Interrogation Techniques under the Geneva Conventions." American law Division. 9 Aug. 2004. CRS. 27 Oct. 2008 . "Executive Order: Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency." The White House. 20 July 2007. U.S. Government. 27 Oct. 2008 . "FM 2-22.3 (FM 34-52). Human Intelligence Collector Operations." Sept. 2006. Department of the Army. 27 Oct. 2008 .

Cowling 11 "Geneva Convention relative to the Treatment of Prisoners of War." Office of the High Commissioner for Human Rights. 21 Oct. 1950. United Nations. 27 Oct. 2008 . "HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE, ET AL." CbsNews.com. 29 June 2006. CBS Corporation. 9 Dec. 2008 . "Legal Standards and the Interrogation of Prisoners in the War on Terrorism." American law Division. 9 Aug. 2004. Woodrow Wilson International Center for Scholars. 27 Oct. 2008 . Levin, Daniel. "MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL." LEGAL STANDARDS APPLICABLE UNDER 18 U.S.C. §§ 23402340A. 30 Dec. 2004. Office of Legal Council. 7 Dec. 2008 . "Military Commissions Act of 2006." Library of Congress. 22 Sept. 2006. 9 Dec. 2008 . "Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment." United Nations. 18 Dec. 2002. United Nations Office of the High Commissioner for Human Rights. 7 Dec. 2008 . National Defense Intelligence College (U.S.), Center For Strategic Intelligence Research.

Cowling 12 Educing Information: Interrogation--Science and Art: Foundations for the Future: Phase 1 Report. New York: Joint Military Intelligence College, 2006. Olshansky, Barbara. Democracy Detained: Military Tribunals and the Threat to Democracy. New York: Seven Stories P, 2004. Purpura, Philip P. Terrorism and Homeland Security: An Introduction with Applications. Chicago: Butterworth-Heinemann, 2006. "Terrorist Cases Should be Tried in U.S. Federal Courts." Human Rights First. 12 Nov. 2008. 9

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