Max Boot prescribes a new imperial detentions policy in the Washington Post:
Successful counterinsurgency operations require locking up suspects based on a lower level of evidence — often based on classified intelligence that would not be admissible in a civilian court. It would be better if U.S. and allied forces undertake these kinds of security detentions while the Afghans build their own civilian legal capacity. That means the United States, Canada and other nations need to overcome their squeamishness about detentions. The Bagram facility has been expanded to handle more than 1,200 detainees. Further expansion is necessary. Even more important, the United States and other nations should opt out of the 96-hour restriction.
The U.S. took just the approach that Boot advocates in Iraq several years ago, and the result was a first-class disaster. More than 100,000 people were swept up in the system at some point–more than 90 percent of them with no basis whatsoever. After closing Abu Ghraib, the prison population at Camp Cropper and Camp Bucca peaked at around 26,000 in 2007. The detention facilities, which were not designed or staffed for these numbers, essentially turned into terrorist training and recruitment facilities. And, of course, there were the torture scandals at Abu Ghraib, Camp Cropper, and Camp Nama, resulting from policies that Boot seems to embrace: the use of torture and cruel, inhuman, and degrading treatment.
U.S. forces operating in Afghanistan do need the power to make security detentions. Not having liberal authority to detain would in fact lead to heavier reliance on lethal force, which challenges basic assumptions of counterinsurgency warfare. But the U.S. faces a number of significant challenges in this process.
First, counterinsurgency operations assume the existence of a legitimate authority that the military can aim to secure and empower. The objective is not to add Afghanistan to the American Empire, but to leave the country with a stable government in Kabul. Nothing is more essential to the legitimacy of a government than its administration of justice. It is true that Afghanistan has a weak rule of law environment–though not quite so true as many assume, since Afghanistan has a legal system that is extremely alien to most western observers, in which tribal orders and enforcement systems play a large role. If the U.S. were to build its own extensive detentions system and a U.S. court regime operating by U.S. rules, what does that say to the Afghans about the intentions of the United States? Nearly everyone will see it as a statement of contempt and disrespect for Afghan law and institutions. The key is therefore to have a detention system that properly respects the Afghan constitution, laws, and courts. In Iraq, this was done by creating a special Iraqi state security court (the Central Criminal Court of Iraq) that was properly resourced and staffed to handle cases coming out of the American detention regime. That model had its problems, but on balance it was a sensible approach that reconciled American security interests with the need to respect the local law and courts.
The second problem is torture. Boot recounts an incident in which a prisoner taken by Canadians was turned over to Afghan authorities and was tortured, concluding that the Canadians should turn their detainees over to the United States. But there is a comparable scandal pending in Britain today, over two prisoners the British surrendered to Americans in Iraq, who were taken to Afghanistan and tortured. American torture policy is the core of the dilemma. The key frustration faced by NATO allies in Afghanistan is their inability to coordinate detentions policy with the United States, due to the Bush Administration’s historic embrace of torture. Canada, the United Kingdom, Germany, and the Netherlands are among the countries that run detention operations in Afghanistan and have a standing policy of noncooperation with the United States, driven by concern over American torture practices. We often forget that the scandal over torture-homicides of prisoners actually started in Afghanistan, at Bagram Air Base, as was demonstrated in the Oscar-winning documentary Taxi to the Dark Side. Moreover, credible allegations of prisoner mistreatment at the JSOC black site at Bagram continue into recent months. NATO badly needs a consolidated, coordinated detentions policy—and American disrespect for the prohibition on torture has consistently stood in the way of such a policy. If Barack Obama wants to make good on the pledge he delivered at Oslo, and provide a firmer basis for NATO operations in Afghanistan, this is one way to do it. The brass in the Gates Pentagon are still set on their go-it-alone ways and don’t see the opportunity, or even desirability, of creating policy that would allow the United States to work with its allies. This is part of the legacy of the Rumsfeld years.
Third, the regime that Boot contemplates, like the one that the Pentagon is pushing towards, is illegal. Although international law gives armed forces the right to make security detentions, it doesn’t provide the authority for prolonged detention. Either that occurs under the authority of the Geneva Conventions or the authority must be worked out in an agreement with the host country. On this point, the United States had repeatedly sought authority from the Afghan government, and they have consistently refused to grant it. The Karzai Government’s refusal is well grounded: they say that it would violate their sovereignty for the United States to run its own long-term prison system in Afghanistan without access to Afghan courts and the protections afforded by Afghan laws. They’re right. An agreement could have been worked out with the Afghans, who have been willing to agree to detention facilities on terms that respect Afghan law and courts. The hold-up has been with the Gates Pentagon, whose attitude has been difficult to reconcile with its proclaimed counterinsurgency mission.