As Congress and the Trump administration continue to consider options to improve the current situation on the southern border—where migrant children are being separated from their families and guardians, and detained by the Department of Homeland Security (DHS)—the stories of mistreatment, neglect, and abuse proliferate. This has led some, including Fox News’s Shep Smith and Just Security’s Ryan Goodman to assert that America has treated even its wartime prisoners better than these migrant children. They are right.
In my former job at the Pentagon, I worked on detainee policy issues and visited U.S. detention facilities in Afghanistan and at Guantanamo. I know well the challenges and, ultimately, successes the United States has had with wartime detention. Indeed, over the course of America’s post-9/11 wars, the United States eventually developed a detainee policy and practice that Americans could be proud of, and, which now serves as a model for detention in modern armed conflict.
The standards for treatment of detained persons in wartime are not the same as those required in peacetime immigration situations. (For a discussion of the standards that apply to the detention of migrant children under international human rights law, see this expert backgrounder by Felice Gaer). And my intention here is not to assert that standards from the law governing armed conflict should apply to the situation on the southern border. To the contrary, in most instances, if not all, migrant children held in temporary government custody should be detained in conditions superior to those of enemy fighters detained during wartime. Still, it is a worthwhile exercise to consider the differences in how we treat enemy fighters and migrant children.
Under the law of war, parties to an armed conflict are required to treat captured individuals with dignity, humanity, and respect. Individuals are not detained to punish them, but rather to remove them from the battlefield so they cannot continue to fight. It is true that detention is an inherently unpleasant experience. The person being detained has lost their freedom for an indefinite period of time. But detention is a necessary part of armed conflict – indeed, as I have argued elsewhere, detention is the humane alternative to killing, and something responsible and moral states do when at war.
The law of armed conflict provides a wide range of protections for persons detained during wartime, including specific protections for detained minors. The U.S. government’s detainee policy is found in Department of Defense (DOD) Directive 2310.01E (last updated in 2017). It incorporates legal requirements from the Geneva Conventions, Additional Protocols, and other international laws. In many ways, it surpasses or adds to those legal requirements. In other instances, detainees will enjoy additional protections if they qualify as prisoners of war or some other special category (including detained minors).
In Section 3(b), the DOD Directive requires that all detainees be treated humanely and with respect for their dignity without adverse distinction. Humane treatment is further defined as including:
- adequate food, drinking water, shelter, and clothing;
- reasonable access to the open air, educational and intellectual activities, and contacts with the outside world;
- safeguards to protect health and hygiene, and protection against the rigors of the climate and the dangers of military activities;
- appropriate medical care and attention required by the detainee’s condition, to the extent practicable;
- free exercise of religion, consistent with the requirements of detention; and
- reasonable access to qualified interpreters and translators, where applicable and practicable.
In Section 3(d), the DOD Directive requires that detainees be registered and their property inventoried, and that records of their detention and property be maintained. This requirement includes issuing an identification number and giving prompt notification and access to the International Committee of the Red Cross (ICRC).
In Section 3(i), the DOD Directive requires periodic review to assess the individual’s status and threat value. In Section 3(k), the Directive allows for detainees to be segregated from other detainees for a range of administrative and security purposes, including the detainee’s age, and to prevent collusion. And in Sections 3(n) and (o), the Directive imposes training requirements and reporting obligations aimed at those involved in detainee operations.
Importantly, all detainees in U.S. military custody – from hardened terrorists to temporarily interned civilians – are provided with at least these protections as a baseline.
My experience with U.S. wartime detention is that those responsible for its execution go above and beyond the base standards. At Guantanamo, detainees are provided with halal food, games and movies for entertainment, reading materials and classes for mental stimulation, religious materials, equipment and space for recreation and exercise, access to medical personnel and treatment, cultural advisers, and a wide range of other benefits and activities. Detainees are permitted to meet with their lawyers, ICRC personnel, and representatives from their governments, and to correspond with their families. Detainees are also given the opportunity to present their cases in courts and robust review processes. Again, detention is an unpleasant, albeit necessary, part of armed conflict. But while there are reasonable criticisms of certain aspects of U.S. wartime detention operations, the United States has continually responded with considerable effort to improve its policies and practices and treat detainees with dignity and respect.
The temporary detention of migrant children who have entered the United States illegally may also be unpleasant but necessary. And, it could be the humane alternative to immediate return to a country where their safety is in question. But like wartime detention, if a country is going to do it, it should do it the right way.
From public reporting, it appears that detention of migrant children is not meeting some of the baseline legal, policy, or practice standards I have described above for military detention. In particular, it appears that detained migrant children are not getting basic hygienic materials, clean clothes, access to open air, appropriate medical attention, adequate food and water, suitable conditions for sleeping, or sufficient protection from the elements. A new story even alleges sexual assault against a 15-year-old Honduran girl by a U.S. border patrol agent in Arizona. Additionally, given the number of well-documented instances where children have gone missing or been otherwise unaccounted for, there seems to be a real need for improved cataloging or even including a neutral third party (e.g., the ICRC) to assist with the task. If the United States can effectively register and account for detainees on a foreign battlefield, then surely it can do so during peacetime in its own territory.
Even though the time migrant children spend in detention facilities is supposed to be relatively brief, typically not exceeding a couple of months, the time has been long enough for some of the children to suffer in substantial and significant ways. This is partly due to the fact that the facilities, much like early U.S. wartime detention facilities, were not designed to hold as many individuals for as prolonged a period of time as they have. These are not criminals or enemies at war with the United States. They are not even adults; in fact, some are still infants. Regardless of what one’s position is related to the bigger immigration questions or the decisions made by the children’s guardians to enter the United States without documentation, the United States can and should do better than this.
To be clear, by arguing that our wartime detainees are treated better than today’s detained migrant children, I am certainly not advocating that this is the standard that should be applied to the children. Ultimately, this is more than a legal issue. It is a moral issue. As a nation, we decided that the United States would meet and surpass all legal requirements for our wartime detainees. We determined that even though al Qaeda and other terrorist groups would never reciprocate, we would treat them humanely and with dignity. That we would go above and beyond the minimal standards of the Geneva Conventions and hold ourselves to a higher standard. And that we would hold our people accountable for any and all violations of these standards. We have done that with wartime detention. It is time we did that, and much more, for our detention of migrant children.
Image: A sign is posted at the U.S. Border Patrol station where lawyers reported that detained migrant children had been held unbathed and hungry on June 26, 2019 in Clint, Texas. Photo by Mario Tama/Getty Images