states have elected to incorporate, in military manuals and other sources of domestic law, only those CIL rules for which there is evidence of widespread practice and are chary of interpretations that might constrain their behavior in war
whether and to what extent CLOACA should be able to create and interpret LOAC without state consent and without representing their work as aspiration rather than description remains open.
universe of interrogation techniques spans a coerciveness continuum from flattery and other rapport-building measures to torture
universe of interrogation techniques spans a coerciveness continuum from flattery and other rapport-building measures to torture
Whether or not more coercive techniques—sleep deprivation, stress positions, temperature regulation, and waterboarding—yield more or better information from detainees, “the optimal level of coercion…is [not] zero.”
Coercive interrogation can protect states by developing information to interdict future VNSA attacks and conspiracies and should arguably be available to interrogators in situations where failure to secure information might enable an attack with weapons of mass destruction
Islamist detainees are entitled to fewer protections under LOAC than POWs
U.S. government instructed interrogators to employ coercive techniques (physical coercion, drugs), which yielded timely information not otherwise likely to have been divulged
Coercive techniques did not approach “torture”: U.S. statute incorporating Torture Convention prohibits only “intentional infliction…of severe physical [or mental] pain or suffering[,] administration…of mind-altering substances…calculated to disrupt profoundly the senses or the personality[,] [or] the threat of imminent death[.]”
To CLOACA, bad-faith definitional narrowing, ipso facto torture, failure to consider cruelty/degradation short of torture
U.S. response: (1) halted techniques construable as prohibited under CA3, (2) transferred detainees to civilian prisons away from interrogators entirely, (3) terminated CIA interrogation authority, (4) gave away all capacity to conduct coercive interrogation, (5) switch to rendition to states that torture, (6) UAV TKs
Supreme Court during WWII held permitting enemy detainees (outside U.S. polity and territorial jurisdiction) access to civilian courts to bring habeas petitions would “bring aid and comfort to the enemy.”
Supreme Court during WWII held permitting enemy detainees (outside U.S. polity and territorial jurisdiction) access to civilian courts to bring habeas petitions would “bring aid and comfort to the enemy.”
As it detained Islamists as unlawful combatants, the U.S. maintained they could be held for duration of the war, tried for precapture crimes, and coercively interrogated to develop intel to prevent future attacks
CLOACA: (1) rejected U.S. authority to detain Islamists fighters save for pre-deportation/pretrial in civil courts, (2) demanded ISDs on pretense many were “laborers, students, relief workers, goatherds” captured far from battlefields, (3) even if some were Islamist fighters GCIII guaranteed ISDs, (4) determining status was impossible but most were in the wrong place at the wrong time and subjected to preventive detention and victims of Islamophobia
US response: (1) no legitimate doubt as to detainees’ status (40% admitted Islamists, 75% “demonstrated threat and vowed to return to jihad if released), (2) no ISD necessary beyond finding a detainee was Islamist VNSA affiliate, (3) preventive detention authorized by LOAC for enemy combatants on basis of affiliation without regard to locus or conduct at capture, (4) providing ISDs in civilian forums would harm natsec by obligating US to reveal intelligence sources/methods in open court and remove combat troops from battlefield to testify as to facts supporting detention or choose protection of classified info and preservation of combat power over restraint of dangerous people
Rasul: entitled to file habeas petitions challenging detention; Boumedienne: CSRT system unconstitutional because detainees lacked lawyers and power to confront witnesses, so federal judicial determination of status, lawyers in habeas proceedings, and review of classified info containing sources, methods, identities of U.S. personnel
U.S response: charge or release protocol: periodic detention reviews and release on determination a detainee will not be prosecuted and no longer poses a threat: dozens of liberated detainees have killed and been killed in battle, scores have been recaptured, two are regional Taliban commanders, one plans “to fight America and its allies until the very end: By 2013, 39% of Islamists imprudently released due to “domestic political pressures” were back at war
Results: (1) no moral opprobrium attaches to unlawful combatancy, (2) unlawful combatants in a position superior to soldiers who obey LOAC and earn combatant immunity, (3) U.S. commanders stripped of the full utility of the tools of detention and interrogation vital to force protection and mission achievement, (4) diminished liberty risks to potential Islamist recruits, incentive for detainees to cooperate in preventing future attacks as a condition of release, (5) worsened correlation of forces against the U.S. by returning jihadis to the battlefield.
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LOAC a permissive regime granting a responsible military commander a “margin of appreciation” and evaluating his alleged breaches not based on the perfect information available post hoc but on what he knew or should have known a priori his decision to attack a target in the manner and with the means chosen: refrains from second-guessing presumptively good-faith judgments save for where actions are demonstrably the result of, e.g., a deliberate intent to kill civilians or a willful recklessness in using force excessive in relation to military advantage
