Nine years after the 9/11 terrorist attacks and the United States invaded Afghanistan, the U.S. government has still not determined who it can detain as an enemy combatant in the war on terror. Despite promises to the contrary, the Obama administration has done no better at settling this debate than its predecessor. It is time for the President to make a final decision on this issue. More indecision could lead to a further loss of credibility for the military detention system and public and international pressure to release some of the hundreds of dangerous terrorists still held in American custody.
Who can the United States capture and detain as an enemy soldier in the war on terror without resorting to traditional criminal charges: the men who pick up a gun and actually shoot at U.S. troops, terrorist group members, supporters, sympathizers, or all of the above?
The answer to this question has real consequences. American wartime detention policy needs to maintain credibility in order to survive. The alternative could result in the potential freeing of committed members of al-Qaeda, and we've already seen the consequences of prematurely releasing committed terrorists. In one such case, a Taliban fighter and former Guantanamo detainee drove a pickup truck filled with explosives onto an Iraqi army base in March 2008, killing thirteen Iraqi soldiers.
Despite heated debates, President Obama's lawyers have been unable to reach a consensus. Earlier this year, The New York Times exposed the internal wrangling over the administration's detainee policy. On one side of the debate is Harold Koh, the former dean of Yale Law School and now the State Department Legal Adviser. Koh has allegedly argued that the laws of war permitted only members of al-Qaeda to be detained without criminal charges, and not mere supporters.
Koh's main opponent in the debate is Jeh Johnson, the General Counsel at the Department of Defense. Johnson has argued for broader authority to detain both members and supporters of al-Qaeda.
Halfway through his second year in office, the President and his advisers still have not come to agreement. Indeed, the lack of clarity has contributed to the hurdles that have prevented the administration from successfully closing the detention center at Guantanamo Bay despite campaign promises made by Obama in 2008.
Part of the problem is leadership. The Justice Department's Office of Legal Counsel, the administration's legal arbiter, has been without an official head since the Senate's refusal to give Obama's original nominee, Dawn Johnsen, a confirmation vote led her to withdraw. With the Justice Department refusing to provide stewardship - much as it and the White House have dithered on deciding Gitmo's fate - the Obama administration has merely adjusted its strategy for the cases currently before a judge: government lawyers simply argued that each of the detainees was a member of the terrorist group. But this band-aid strategy won't work for all detainees and it won't work for much longer.
The mere existence of a robust debate is perhaps a welcome development given recent history. The Bush administration, as with many terrorism-related issues, took a very broad view of the President's authority to detain enemy combatants under his powers as Commander in Chief. Bush administration lawyers argued that the President could use military detention or anyone who supported al-Qaeda. One government lawyer even told a federal court in 2005 that the administration could detain a "little old lady" who contributed money to al-Qaeda by mistake or a person who taught English to the children of an al-Qaeda member. Needless to say, Bush administration policy has made the pursuit of a solution more elusive and cloudy.
An answer to this critical legal question may be in the offing. A recent article in the Harvard Law & Policy Review by David Mortlock, a State Department attorney, makes the case for a detention policy consistent with both the Authorization for the Use of Military Force passed by Congress days after 9/11 and the general law of war. The piece argues that the U.S. can use military detention against the same group of people that we target with military force: members of al-Qaeda or the Taliban or other aligned groups.
This solution would mean we could detain not only those who attack our troops, but also those who qualify as members of those organizations. But it also entails that we would draw the line at supporters and sympathizers and use criminal law to target them. This view is not only pragmatic, but it also follows established law.
Whichever course is picked, the time has come for President Obama to referee this debate. He should declare the government's policy on military detention once and for all. Keeping our enemies off the battlefield demands a structured detention policy. It also requires that policy be clear to avoid legal wrangling, confusion, and the loss of public support.
Let's hope the President considers all these views before making this much-needed decision. The sooner, the better.