JURIST Contributing Editor Jeffrey Addicott of St. Mary's University School of Law, formerly a Lieutenant Colonel in the US Army Judge Advocate General's Corps, says President Obama's inability to close the lawful Guantanamo prison is actually good news, but so is the Afghan government's agreement to take over the new Bagram detention facility by the end of 2010….

One of the key issues in the long running “War on Terror” (as recently as January 7, 2010, President Obama acknowledged that the United States was in a “War with Al-Qa’eda”) revolves around the detention of so-called al-Qa’eda and Taliban enemy combatants. With the 2006 release of the 14 “high-value” al-Qa’eda detainees held by the CIA in “undisclosed” locations, all enemy combatant detainees are currently held either at Bagram Air Force Base in Afghanistan (about 800) or the American run detention facility, Camp Delta, at Guantanamo Bay (GTMO), Cuba (about 200).

Under the rule of law associated with armed conflict, all al-Qa’eda and Taliban detainees are unlawful enemy combatants or "unprivileged enemy belligerents", as the recently passed 2009 Military Commissions Act labels them. As such, these individuals are not entitled to Miranda rights, nor are they entitled to the special protections associated with prisoners of war.

Under the law of war, the purpose of detaining these unprivileged enemy belligerents is to ensure that they do not return to join enemy forces and, in this unique situation, to allow American officials the opportunity to gather any necessary intelligence about the terrorists’ organizational infrastructure, financial network, communication system, weapon supply lines, and plans for future terror attacks. As is the practice in all wars, the purpose of detention is not to punish the enemy combatant, but to protect the host nation from future acts of violence by the enemy.

The first good news in the detention issue is that President Obama has not been able to fulfill his stern promise to close the detention facility at GTMO by January 2010, or sooner, because of the “perception” that the United States is in some way acting outside of the rule of law. Of course, this reasoning is incorrect. In reality we are at “War with Al-Qa’eda” and GTMO is therefore perfectly lawful. Indeed, closing GTMO would only provide a significant propaganda victory to our enemies, not a public relations victory.

In addition, during the first year of the Obama Administration, few seemed the least bit curious about where we were sending al-Qa’eda detainees if not to GTMO. In fact, they were and are being sent to join the hundreds and hundreds of al-Qa’eda and Taliban unprivileged enemy belligerents at Bagram, Air Force Base. The same legal authority that allows the United States to lawfully detain al-Qa’eda and Taliban fighters at GTMO is used at Bagram. In other words, if President Obama believes that we need to apologize for GITMO and close it down, then we certainly need to apologize for the far larger detention facility at Bagram and close it down.

To be sure, this double standard has not been lost on detainees at Bagram. In the past year, at least four separate lawsuits were filed in the federal district court in Washington DC by individuals captured outside Afghanistan seeking, among other things, the right of habeas review of their status as “enemy combatants.” When the cases were consolidated, the Obama Administration strongly argued that the four were not entitled to habeas review because they were in fact enemy combatants and lawfully detained under the applicable law of war and Congress’s 2001 Authorization for Use of Military Force (AUMF). Unfortunately for the United States, in each case (except for a detainee who was a citizen of Afghanistan), the federal court ruled against the Obama Administration. Relying on Boumediene v. Bush (2008), the federal district court held that the Constitution guarantees habeas rights to Bagram detainees.

Clearly, the granting of habeas to unprivileged enemy belligerents in far off Afghanistan poses serious difficulties for the Obama Administration, but this matter may well be overcome by the second piece of good news associated with detention issues. In early January 2010, the Afghan Defense Ministry announced that it had agreed to take over the new 60-million-dollar (US funded) Bagram detention facility by the end of 2010. This means that the Afghan government would be solely responsible for detaining and prosecuting all detainees. If this comes to pass, the United States may be able to close a significant chapter in dealing with the vast majority of the unprivileged enemy belligerents captured in the War on Terror. Good news indeed.

Jeffrey F. Addicott [Lt. Col. (ret.) US Army] is a Distinguished Professor of Law and the director of the Center for Terrorism Law at St. Mary’s University School of Law, San Antonio, Texas. He has served as an expert advisor to the government on the military commissions’ process. Addicott also served as the senior legal advisor to the U.S. Army Special Forces. He recently testified before the Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts hearing entitled: “What Went Wrong, Torture and the Office of the Legal Counsel in the Bush Administration,” in Washington, DC.
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