The US’ Failure to Plan for ISIL Detention Operations is a Flawed Approach

When it comes to detaining ISIL suspects in Iraq and Syria, the US is taking a hands-off approach. The New York Times reported last week that the US is not planning to engage in large-scale detention operations and, when it does capture someone, it says it will hand them over to allied forces as soon as possible.

Army Col. Steve Warren told The New York Times, “we’re not equipped for long-term detention,” and “we’re not set up here for that, so we’re not in that business.”

There could be several reasons why the US doesn’t want to engage in large detention operations. Perhaps government officials are worried that such operations would signal too high a level of engagement in a protracted military conflict. The Obama administration continues to downplay the US role in Iraq and Syria despite having announced plans to send another 200 troops (and increasing the use of artillery and Apache gunships) to the former and 250 special operations ground troops to the latter. Additionally, the bad taste that detention operations in Iraq and Afghanistan left in the military’s mouth may have proven too much and the military now wants to avoid detention at all costs. Or perhaps the US has concluded that Iraq is fully capable of performing the function.

The problem is that thinking one can avoid detention operations on the battlefield by not wanting to detain, and by not planning for detention, is a recipe for disaster. Planning is needed because, firstly, detention operations aren’t always foreseeable — for example they can arise due to surrender en masse or unexpected upticks in ground operations that lead to increases in captures. Secondly, the fact that we’re in an election cycle makes detention preparation all the more important. Consider the very real possibility that the next president could order military actions in the region leading to long-term and large-scale detentions. Contingency planning and preparation for that needs to be underway now, not at the point when that decision is made.

Add to this the fact that the principle of non-refoulement under international law bars the US from handing over its detainees to allied forces when there are substantial grounds for believing there’s a real risk that detainees will be tortured or subjected to other serious human rights abuses. The US formulates this responsibility in looser terms and applies it only as a matter of policy. But, if that policy is followed, the troubling human rights record of Iraqi authorities, Kurdish forces, and allied groups in Syria, may nonetheless result in the US needing to hold detainees for extended periods of time or releasing them, neither of which the US is keen on doing.

It’s been 20 months since several people, myself included, recommended that the US put in place a detention plan even if it doesn’t think it will be capturing a significant number of ISIL-related suspects. And it’s been one year since the US captured its first known ISIL detainee — Umm Sayyaf, the wife of suspected ISIL member Abu Sayyaf.

In the wake of Umm Sayyaf’s capture, I made several recommendations for the US to establish a proper legal detention framework, but I made others that were more diagnostic in nature, meant to help the US either avoid or plan for, as Human Rights First’s Raha Wala put it, ending up “between a rock and a hard place” of not wanting to detain and having to detain. Those diagnostic recommendations to the military included:

  • Assess on a regular basis which, if any, safe and humane detention facilities it could transfer detainees to in Iraq. This should include an assessment of whether independent groups, lawyers, health professionals, and others have access to such facilities.
  • Assess the quality of laws, due process procedures, and trials to which transferred detainees may be subject to ensure they are not subjected to a flagrantly unfair trial.

I also recommended that the US establish a fair, transparent, independent, and impartial mechanism that provides for an adequate and individualized examination of non-refoulement concerns.

I have no knowledge if these recommendations were taken up, but it’s still not too late if they haven’t been. If, however, the US doesn’t plan accordingly, there’s a real threat that US’s marred detention history will repeat itself in several ways.

Lessons From Afghanistan

In Afghanistan — the context I know best — the US, to its own detriment, all but ignored the issue of non-refoulement until 2011. In 2007, the US signed an Exchange of Letters (p. 39) with the Afghan government to put in place a monitoring mechanism that would have allowed the US to visit the detainees it transferred to Afghanistan with the view of deterring abuse. But nothing came of that. Instead, that letters demonstrated how such documents can be hollow tools that states rely on to give lip service to the idea of complying with the principle of non-refoulement. The President’s Task Force on Interrogations and Transfers recommended in its August 2009 report that the government should ensure that transferred detainees do not face torture. The Task Force had the trappings of an Executive Order, but it took a year until I was hired to design and implement a system to prevent post-transfer torture. Ultimately, nothing came of that initiative.

It was only in the second half of 2011 that the issue came to a head. This occurred when the US military was confronted with undeniable information that it was handing detainees over to abusive Afghan authorities. Within a few weeks, the US military implemented a process that ceased US transfers of detainees to tainted facilities and put in place training and monitoring teams to assess reforms. (Whereas the US Embassy in Kabul had been taking months upon months to put in place its monitoring system. Those following this issue will know that these new measures in 2011 applied to all ISAF members and added to similar policies that various ISAF countries, such as the UK and Canada, had previously put in place unilaterally well beforehand.) Since that time, the US — at least as a matter of policy — continues to commit itself to the principle of non-refoulement.

Better this happened in 2011 than never. But by the time the military acted, it had to deal with the compounded problem of allegations of Afghan detention abuse occurring at over a dozen facilities. If the US had been far more attentive to its transfer obligations years sooner, it likely wouldn’t have had to make up so much ground to resolve this issue once it finally decided to take action.

An underlying cause of the US’s snail’s pace approach to dealing with its detainee transfer obligations in Afghanistan was that it saw its transfer responsibilities as a matter of policy, not hard law. This resulted in the government’s longtime failure to prioritize knowing what was going on in the detention facilities it was transferring people to or, worse, allowed them to ignore, until 2011, the abuse problems that it did know about. The end result was that Afghan officials tortured more people than otherwise would have been if the US took its non-refoulement obligations seriously.

None of these shortcomings should be repeated in Iraq or Syria.

Some might claim that respecting the principle of non-refoulement and a foreseeable need for the military to cease ISIL detention transfers to its allies will result in the US having control over a larger detainee population than it wants and this will incur enormous resource and operational burdens. That may be true, but those concerns, and the wishful desire not to detain, can’t magically make the issue of detentions disappear. Planning for detention as if it’s inevitable will, instead, bring with it the invaluable potential of making any detention operations that are likely to occur more manageable, secure, and humane for everyone. 

About the Author(s)

Jonathan Horowitz

Legal Officer - National Security and Counterterrorism Program at the Open Society Justice Initiative Follow him on Twitter (@J_T_Horowitz).