No Detention Plan for ISIS

by Jens David Ohlin

Today’s New York Times tells us that the Obama Administration currently has no active plan for holding Islamic State (ISIS) detainees captured on the battlefields of Iraq or Syria. The article makes clear that the lack of a plan isn’t because the Obama Administration hasn’t been thinking about the issue. In reality, the lack of a plan stems from the fact that the Obama Administration refuses to develop one.

Why not? After the fiasco known as Guantanamo Bay, the administration apparently has no interest in getting into the detention business. As in, not just the CIA not getting into the detention business — but the whole government not running a detention facility.

So this triggers an obvious question: Where will the detainees go?

One worry expressed in the article, echoed by former administration lawyer William Lietzau, is that the lack of a detention program might have perverse incentives. Some non-U.S. forces fighting against ISIS might decide that it is better to execute detainees rather than capture them, given the lack of a viable detention plan or facility run by the United States. It doesn’t take an international lawyer to know that executing prisoners, or soldiers otherwise hors de combat, is a war crime (and a particularly egregious one).

So far, the assumption has been that the Iraqi government will run a detention program itself (at least for detainees captured on Iraqi territory). According to the Times:

The potential for a large number of prisoners presenting these kinds of challenges — for somebody — has been raised at planning meetings for months both inside the Obama administration and with coalition partners, according to officials familiar with internal deliberations.

But with no good options, the Obama administration’s default policy is to take custody of the highest-value detainees for interrogation, something the United States has done only twice with Islamic State prisoners. Both were later moved to Kurdish prisons.

The assumption is that the Shiite-dominated Iraqi government or the Iraqi Kurdish forces will hold and, if appropriate, prosecute any suspected foot soldiers and sympathizers they capture.

“We’re not equipped for long-term detention,” said Col. Steve Warren, the spokesman for the American military forces in Baghdad. “We’re not set up here for that, so we’re not in that business.”

It is not clear to me what would happen to ISIS forces captured on Syrian territory by moderate rebels who are also fighting the Syrian government.  It doesn’t seem likely to me that they would transfer the detainees to the Iraqi government (but I don’t know), and they surely won’t transfer the detainees to the Syrian government.  And it is unclear to me whether these rebels will have the infrastructure necessary to run their own detention program.

5 Responses

  1. Hardcore terrorists like the ones belonging to ISIS or Al Qaeda or Boko Haram need to be eliminated. Scope for rehab is almost non-existent. Elimination will save the honest tax payer’s money. The money spent on the LeT terrorist captured in Mumbai was a colossal waste. Also it leads to situations where hostages are taken for obtaining release of these detained terrorists.

  2. Advocating cold-blooded murder. No wonder the commenter is anonymous!

  3. Response…do not assume US controls no high value types.

  4. I’m curious as to what Professors Ohlin and Heller believe the right/best solution is in this situation. I understand that European countries participating in NATO operations more or less completely stopped detaining combatants in Iraq and Afghanistan for a variety of legal and practical reasons and post Guantanamo litigation, the U.S. will never want anything to do with detaining any sizable number of people in any conflict. Perhaps Russia would be open to helping.

    As Professor Ohlin, notes, western refusal/inability to run large scale detention operations is going to probably be a disaster from a humanitarian perspective. Western countries, particular European ones, have created a legal regime that makes capturing anyone impossible, but makes killing them easy. I think the US, unlike the Europeans, would almost would win almost any litigation NGOs might bring, probably at the jurisdictional stage, but it simply isn’t worth it. But, it does let western countries look like they’re keeping their hands clean, so at least there’s that.

  5. @Kevin Jon Heller What do you propose? Five star facility for Baghdadi and his ilk if they are taken alive? The ones released from Gitmo did not go to lead peaceful lives back home. Like cancer they have spread in the form of Boko Haram, ISIS in Syria, Iraq and Libya. If people like you advocate humane treatment for those bloody terrorists, one needs to feel sorry for you and your ilk.

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