What is the US going to do with the “enemy combatants” it picks up during counterterrorism operations?  How will we strike the difficult balance between protecting national security and the rights of individuals?  If these feel like questions that have already been answered—several times over and at length—it’s for good reason.  From the Bush administration’s first fumbling steps to the use of the Guantanamo Bay detention facility through to the Obama administration’s prosecution of domestic ISIS supporters, the disposition of detainees has presented some of the most pronounced legal inflection points for America’s post-September 11 operations overseas.

Now it’s the Trump administration’s turn.  So far, bombastic campaign rhetoric has translated into marked silence on many legal issues around national security, including detention.  Despite rumblings that an executive order on detention was (or may still be) forthcoming, none has yet been issued.  The delay could be for reasons as simple as interagency disagreement on the finer points (which bogged down a number of Obama-era national security initiatives), or it could reflect the difficulty of reconciling campaign rhetoric with the national security and diplomatic realities that experienced civil servants and even a number of Trump’s appointees (such as those with significant military experience) have surely advised must be taken into account.

But the administration will eventually have to speak, at least through its actions.  These questions are very much a part of current news cycles.  The recent attack in downtown Manhattan prompted Donald Trump to renew his call to send more detainees to Guantanamo Bay.  Two of the individuals accused of masterminding the Benghazi attacks are in US custody and have been charged in federal court.  And as Steve Vladeck and others have detailed, US forces in Iraq are holding an American citizen who allegedly turned himself in while fighting for ISIS in Syria.

So far, there has been no clear indication of a concerted administration approach to detainees.  Will Trump, in fact, increase the number of “bad dudes” held at Guantanamo Bay and perhaps tried by military commission?  Or will the administration pursue other avenues for prosecuting these detainees, whether in our domestic federal courts or in another state? 

The administration’s answers to these questions will tell us important things about how candidate Trump’s harsh rhetoric will translate into president Trump’s legal strategy for countering terrorism.  Examining the legal and policy options available to the president—and the ways his predecessors have navigated similar decisions—helps in understanding the potential paths forward and their pitfalls.  How the Trump administration deals with detainees will provide insight into its counterterrorism priorities, especially on the home front.

Potential Pathways

These are not idle questions.  A 2015 House Homeland Security Committee report placed the number of US citizens fighting for ISIS north of 250.  Given the broad definition currently used of “associated forces” of al-Qaeda, the Taliban, and now ISIS as well, there may also be US citizens fighting for other groups that the US views as covered by the 2001 Authorization for Use of Military Force, or AUMF (of which, more later).  And the recent operations in Niger that resulted in the deaths of four American service members serve as a reminder that operations resulting in the capture of detainees could occur in theatres all over the globe.  What does the Trump administration plan to do with detainees, whether US citizens or non-nationals, when they come into US custody?  In assessing that question, what are the constraints that govern?

There are three primary possible dispositions for an individual captured in connection with counterterrorism operations: (1) military detention, including the option of trial by military commission; (2) criminal prosecution in the United States; or (3) transfer to another country.  Each presents a unique set of legal considerations and political problems.  Fortunately for the Trump administration, should it choose to, it can operate from a position of relatively robust knowledge and experience, as each of these paths has been the subject of litigation and political debate for years.

1. Military Detention and Trial by Military Commission

President Trump on the campaign trail made no secret of his disdain for civilian trials of individuals who come into U.S. military custody.  He promised to “load [Guantanamo Bay] up with some bad dudes,” and the Attorney General has also spoken favorably of the facility.  So there is reason to think that the Trump administration might consider holding such detainees in military custody.  Once in Guantanamo, the administration would have to decide whether to hold an individual in law of war detention, intended only to prevent him from returning to the battlefield and terminable at any point when the conflict ends, or to prosecute him in the military commissions system.  (Which is experiencing its own troubles.)  Unlike law of war detention, the US can imprison individuals found guilty for the full length of their sentences, without concern that the end of hostilities might necessitate their release.  But, rhetoric aside, not everyone can be held in Guantanamo or tried by military commissions.  The administration must answer a few crucial questions.

First, can an individual be held under the AUMF?  When it comes to alleged members of ISIS, such as the unnamed detainee in Syria and potentially Sayfullo Saipov, who killed 8 and injured 12 in New York on Halloween, that fundamental question has thus far evaded judicial scrutiny in the United States.  The AUMF authorizes the US to use military force against those who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”  Under the Obama administration, this was defined to include al Qaeda’s “associated forces”— “organized, armed groups” that were “co-belligerents” with al Qaeda.  And in 2014 that definition was extended to ISIS.  The Obama-era interpretation of the AUMF that it provides the authority to use military force against ISIS—including to engage in military detention and conduct trials by military commissions—has been accepted by his successor.  But many people think that this expansive reading of the AUMF’s authority is a stretch.  The Senate Foreign Relations Committee this week held hearings on whether to pass a new authorization.  Secretaries Tillerson and Mattis reiterated the Obama administration’s position that a new authorization is not required, even while Mattis noted that a new AUMF would signal “America’s determination” in the counterterrorism space.

Second, can such individuals be tried by military commission?  Non-citizens, whether captured abroad or legally present in the US at the time of capture, can be classified as “unlawful enemy combatants” and tried by military commissions.  For US citizen detainees, there is currently a statutory bar to their trial before the military commissions at Guantanamo, because the Military Commissions Act under which the tribunals are constituted does not apply to citizens.  However, the Uniform Code of Military Justice does allow for military commission trials of citizens for clearly established international war crimes.    

This leads into a third threshold question: what offenses fall within the jurisdiction of the military commissions?  Despite being one of the critical problems of the post-9/11 national security legal world, it remains an open question whether the military commissions at Guantanamo, ostensibly established under the law of war, can try individuals for federal law crimes that are not violations of the law of war.  Two of the most significant charges in the US prosecutorial arsenal in terrorism-related cases—material support for terrorism and conspiracy to commit terrorism—fall into this category.  And the question of whether these offenses can be tried by military commission is likely to remain open for some time, as the Supreme Court recently declined an opportunity to take up the question when it denied cert in al-Bahlul.

So whether citizen or not, captured in the US or abroad, there is no absolute bar to holding many terrorism detainees pursuant to the AUMF.  Holding individuals detained in counterterrorism operations at Guantanamo Bay does not, however, exempt the executive from all judicial oversight.  In Hamdi, the Supreme Court ruled that a citizen must have the opportunity to challenge the reasons for his detention before a neutral tribunal.  And in Boumediene, the Court further held that federal courts can hear habeas petitions from all detainees at Guantanamo, whether or not they are citizens.  So bringing an ISIS detainee into the military commission system at Guantanamo would almost certainly require the executive to allow the federal courts that hear habeas petitions arising out of the military commissions.  Even though the DC Circuit has been deferential to the executive in reviewing Guantanamo habeas cases, given the controversial interpretation of the 2001 AUMF with respect to ISIS and the question of the status of federal law crimes, it is unlikely that the career lawyers would counsel the White House to open itself up to such litigation.

As a matter of policy, both the Obama and Bush administrations finally concluded that transferring US citizens or individuals captured in the US to Guantanamo Bay — or even to military custody in the United States — was unwise.  The Bush administration originally took an expansive view of who could be held in military detention.  In addition to Hamdi, there was Ali al-Marri, a US legal resident arrested in 2001 as a material witness in the 9/11 investigation.  Although he was charged in federal court with fraud, in 2003 al Marri was transferred from civilian to military custody, with the administration claiming he could be held indefinitely as an “enemy combatant.”  Jose Padilla, a US citizen, was detained in the US in 2002 for suspected ties to al Qaeda and the 9/11 attacks and transferred from federal civilian to military custody.  Both al Marri and Padilla challenged their military detention in federal habeas proceedings.  In the end, after unsuccessfully arguing in both cases that the AUMF would permit indefinite detention without charge, both Padilla and al Marri were transferred back to civilian custody and tried in federal court—the former by the Bush administration, the latter after Obama took office.  The upshot of these cases is that there has been no definitive determination of whether the 2001 AUMF authorizes indefinite military detention of those detained inside the US or the scope of a US citizen’s ability to challenge the government’s determination that he can be subject to military detention under the 2001 AUMF.

The Obama administration did not bring ISIS captures to the United States for detention or trial.  In part, this was reflective of a policy approach that sought to keep Iraqi and Syrian counterparts in the lead, and in part due to a recognition that habeas petitions would provide an opportunity for courts to opine on the question of whether the 2001 AUMF does in fact extend to ISIS.  Indeed, the issue is percolating before federal courts in several ways.  A panel of the DC Circuit recently heard argument in an army captain’s lawsuit claiming that the AUMF is insufficient authorization for the war against ISIS.  And the ACLU has squarely raised the question of whether the AUMF extends to ISIS in its habeas filing in the case of the current unnamed detainee.  Those in the executive branch who have overseen the military detention process since 9/11 are unlikely to see the current cases as fruitful ones in which to reopen these fraught questions.  Despite the president’s charged rhetoric, no transfers to Guantanamo Bay have taken place during the first ten months of the Trump presidency, and it seems unlikely that an American citizen will be the first.  The Bush administration eventually concluded that holding citizens there was unworkable, and the career lawyers at DOD and DOJ are likely to strongly counsel against doing so.

2. US Prosecution

In lieu of law of war detention at Guantanamo, with the attendant possibility of trial by military commission, the administration could elect to bring detainees to the US to try in civilian courts.  While candidate Trump denigrated civilian courts as an option, they have quietly been the locus of trial for all US citizens accused of assisting Al Qaeda and associated forces, like ISIS.  Among those currently facing federal charges are Mohamad Jamal Khweis, a US citizen captured by the Kurdish Peshmerga forces in Iraq while allegedly fighting for ISIS, and Mustafa al-Imam and Ahmed Abu Khattala, accused of taking part in the attacks that killed US personnel in Benghazi, Libya.

By now many courts have upheld a procedure that allows for individuals captured by or transferred to the US military to be subsequently moved into the civilian justice system.  Courts have signed off on a process that recognizes the need for flexibility and intelligence-gathering during the initial post-capture period while preserving constitutional protections afforded to criminal defendants.  Three are two unique aspects of the court-sanctioned process that bear noting: (1) some permissible delay in presentment to recognize the difficulties of getting someone from a battlefield to civilian judge; (2) and a separation of national security-based intelligence gathering and Miranda-protected criminal interrogation through the use of a “clean team.”

The presentment issue is not unique to the current conflicts.  In other cases where the US military effectuates the capture of individuals who are to be tried for civilian crimes by civilian courts, presentment delays have also been permitted where they are not unreasonable.  Courts have tended to grant the government leeway in assessing what is prompt presentment when individuals are captured at sea during military or law enforcement operations, as is the case with maritime pirates and drug traffickers.  For Abu Khatallah, captured in Libya and returned to the Untied States to be tried for the murder of Ambassador Chris Stevens and others in Benghazi, the DC Circuit upheld a thirteen day delay in presentment after capture.  Abu Khatallah was transported back to the US by ship, which resulted in the delay, and while the court acknowledged that the ship could have gone faster or some air transport route perhaps could have been found, it deferred to the government to assess its options.  In the case like that of the current unnamed detainee in Syria, therefore, the fact that the administration has not yet presented him before a civilian court to face charges does not preclude them doing so in the future.

The use of so-called “clean teams” to separate intelligence-gathering from criminal interrogation is another unique feature of these cases.  Immediately after capture, these individuals are often questioned for military and national security purposes without being given Miranda warnings or offered representation.  In the case of Khweis, this interrogation occurred before he even entered US custody, though US interrogators participated in—and even seemed to lead—the questioning.  Once this phase of the interrogation is over (in Khweis’s case it lasted almost two months) a “clean team” of law enforcement investigators can effectively reboot the relationship.  The new team, often in a new setting, make clear to the detainee that they are conducting an unrelated law enforcement investigation, that they will not use information from the previous conversations, and advise him of his Miranda rights.  Such “curative steps” allow the government to have its intel cake and eat it, too, while the defendant faces a criminal prosecution.

In general, military commissions give the government procedural latitude, while civilian prosecution offers substantive flexibility on charges.  However, given the accommodations federal judges have afforded the executive branch, prosecution in civilian courts of captured US citizen detainees seems like it should be an attractive option.  But some significant hurdles remain.  First, there is the evidentiary question.  Getting evidence sufficient to meet criminal standards from battlefield environments to a US courtroom is no small task.  In addition, the separation of intelligence and criminal interrogation phases means that nothing defendants disclose during the former should be admissible in the latter, potentially further limiting the available evidence.

3. Transfer

If Trump doesn’t want to bring a detainee to the United States (or his Justice Department doesn’t believe it has the evidence to make a case), and if his advisors are ranged against the Guantanamo option, what is left?  There are generally two types of detainees in the counterterrorism context: those held in preventive law of war detention, and those held pending criminal prosecution.  The United States can transfer detainees directly from military custody to another country for either continued law of war detention or prosecution.

Whether for continued law of war detention or prosecution, the most likely transfer destinations for individuals captured on the battlefield are generally: (1) to appropriate authorities in the state of capture; (2) to the individual’s state of nationality, if different than the state of capture; or (3) to other regional members of the military coalition that are capable of holding detainees or prosecuting them.

In the ISIS context, none of these options are straightforward.  For instance, there may not be appropriate authorities to receive a detainee in Syria: the US would ostensibly not consider a transfer to the Asad government based on its atrocious humane treatment record and our lack of diplomatic relations, but likewise would face significant obstacles transferring an individual for a long-term disposition to Syrian non-state actors (like the Kurds involved in the counter-ISIS campaign).  Another major hurdle is the severe resource and capacity constraints faced by our regional coalition partners – it is unclear whether Iraq or Jordan, for example, will be able to successfully prosecute ISIS detainees or develop sustainable long-term dispositions for military detention.  These types of constraints also exist for many of the other states of nationality of the numerous foreign fighters who have traveled to Syria and Iraq to fight with ISIS.

Moving beyond these practical constraints, any other country’s ability to hold an individual picked up in the conflict with ISIS as a law of war detainee may depend upon its interpretation of international and domestic law.  Given the non-international nature of the armed conflict against ISIS—that is, that it is occurring between a state and a non-state actor, not between two or more states—the precise contours of the legal regime that governs detentions is a subject of ongoing debate.  For the US, the AUMF and associated domestic law provide authority to hold those found to be “enemy combatants” for the duration of the conflict.  Since at least 2009, the US has been clear that it applies the protections of Common Article 3 of the Geneva Conventions to such detainees and that certain provisions of human rights law generally continue to apply during armed conflict.  Other states may have different interpretation of the applicable international law or be subject to differing domestic law requirements.  These differences could impinge upon a state’s willingness to receive and hold a detainee, particularly for some of the European coalition partners.  For others, these differences complicate the US government’s ability to transfer if it cannot assure itself that the receiving state would not extend sufficient baseline protections to the detainee.

A major barrier to transfer in many situations is the US’s non-refoulement obligation.  Under the Convention Against Torture, the US has an obligation not to transfer any individual to a country where there are “substantial grounds” to believe he would be subject to torture.  Congress incorporated that obligation into federal law in the Foreign Affairs Reform and Restructuring Act (FARRA), making it “the policy of the United States” to comply with this obligation in transferring individuals, “regardless of whether the person is physically present in the United States.”

In either case, because federal courts can hear habeas petitions from military detainees in certain circumstances —perhaps especially, the Supreme Court’s ruling in Munaf implies, if they are US citizens—our unnamed detainee could have grounds to challenge potential transfers to third parties where he fears mistreatment.  The scope of any potential relief is less clear: courts have divided on whether an executive branch decision to transfer a detainee can be reviewed on the grounds that the detainee might face torture in the receiving state.  Munaf implied in a footnote, but did not decide, that FARRA might preclude courts from looking behind executive branch determinations outside the immigration context.  Notwithstanding the uncertainty regarding the scope of judicial review of non-refoulement claims, any serious consideration of the obligations almost certainly would preclude a transfer to Syria—assuming the US could agree on who to transfer him to there, anyway.

The United States can also transfer detainees to another state for criminal prosecution.  The unnamed detainee in Iraq is a US citizen; but this isn’t dispositive in the transfer context.  The US transfers its citizens to other states for criminal prosecution all the time through the extradition process.  Such transfers, even for a law of war detainee, would likely avoid the majority of oversight by US courts.  The Court in Munaf – a case regarding two US citizens being detained in Iraq – held that federal courts can hear habeas petitions from military detainees overseas but cannot generally block their transfer.

In the unnamed detainee’s case, transfer back into Syria would almost certainly be barred based on non-refoulement concerns.  This means his most likely transfer destination is Iraq, where he is currently being held.  If Iraq wished to prosecute, transferring him might be an option.  The two US citizens in Munaf were transferred to Iraqi custody for prosecution, a decision upheld by the Supreme Court; and the Obama administration transferred ISIS detainees to Iraqi custody with some regularity.  But several of the factors that the Court looked to in Munaf, especially the voluntariness of the defendants’ presence in Iraq, are different in this case.  The US brought the current unnamed detainee to Iraq; but for our actions he would not be within their jurisdiction.  Besides, it’s not clear that Iraq has any interest in or capacity to prosecute him.  Unlike Munaf, it’s highly unlikely that he was directly fighting against Iraqi forces, and Iraq may well conclude that he’s likely to be more trouble than he’s worth, even if the US assists in gathering evidence for any potential trial.

Potential Conclusions

So where does that leave potential detainees?  Despite the administration’s rhetoric, it has thus far gone down the least thorny of the available long-term disposition options, U.S. prosecution in the civilian justice system, which is also the most effective in securing timely convictions.  But the unnamed citizen in US military custody in Iraq has, as far as we know, yet to be charged with any crime in the United States — though such charges could of course have been filed under seal.  For the moment he is an inflection point, where the Trump administration has to decide how rhetoric and pragmatics will meet in the highly charged national security space.  What happens with these detainees will be an important signal of where the balance of power and opinion lies within an administration that has lacked a strong public voice on these issues.   

So far, the Trump administration’s stated desires to detain individuals at Guantanamo Bay and try them in the military commission system have been conspicuous by their absence in practice.  No detainees have been transferred, and despite reports of several draft executive orders reopening Guantanamo for detention of al Qaeda and ISIS members, none have been signed.  While speculation about this administration’s policy goals can be a dangerous quagmire, this may indicate that the seasoned voices of civil servants from across the executive branch are being heard on this issue.

If they are, in fact, heeding the voices of DOJ, DOD, State, and others, the Trump administration can formulate detention policy from a position of significant knowledge based on what has and hasn’t worked for predecessors – knowledge about the leeway U.S. courts are likely to provide in a domestic prosecution scenario, the significant legal liability that would attach to continued law of war detention or trial by military commission, the likely reactions of our foreign partners if we add to the detainee population at Guantanamo, and the limits of third party transfers given the significant constraints in the most likely countries of capture and detention (such as Syria and Iraq).  The Trump administration would be wise to use these lessons learned in order to avoid some of the mistakes of the Bush and Obama administrations.  But to do so, it may need to keep its campaign rhetoric bottled up – which has proven an equally daunting task.

Image: Shane T. McCoy/U.S. Navy