Flex-Cuffing Ourselves: The Criminal Justice Paradigm for Detention Operations

[Note: I submitted this essay for the Military Officers Association of America (MOAA) 2009 essay contest. The MOAA panel selected the essay as one of three finalists, and it won the contest after a month of open online voting. I was proud to donate the top prize of $1,000 to the recovery fund of my friend Blake Smith, a Marine helicopter pilot recently injured in Afghanistan. You can read more about Blake here.]

In 2006 I served as a convoy commander with 3d Battalion, 3d Marines during a seven-month deployment to Haditha, Iraq. I was responsible for transporting scores of detainees from our area of operations (AO) to the Regimental detention facility at Al Asad. We felt every second of each two-hour drive down the western bank of the Euphrates River. Every moment we stared ahead intently at the road, fully aware of what might happen, and hoped our mission was worth it. These detainees often showed up again on our streets in the following weeks, and many Marines felt exasperated and betrayed. What was the point, they’d ask? Why risk our lives going on raids and transporting detainees across our AO only to see them released in a matter of days or weeks? We called it the “catch and release” program, and it crushed morale.

This is the unheard voice in the current discussion about the future of the United States’ military detainment policy, the voice of the grunt. When considered, it can bring a valuable measure of reality to esoteric philosophical debates and political rhetoric. While lawyers, activists, and politicians argue about balancing American values, international opinion, and strategic objectives, those who execute these policies watch with trepidation. Our experience demonstrates that shifting to a criminal justice framework for military detentions during combat operations will significantly increase the danger to U.S. troops and dramatically decrease their effectiveness.

The criminal justice framework makes the combat environment hazier rather than clearer. Even under the most lenient of protocols, detentions would be subject to myriad technical challenges on the validity or sufficiency of evidence, interpretations of rights and jurisdictions, and the legality of “arrests” and time limits for detention. The individual grunt and his team leader, already conducting the most difficult small-unit operations in our history, would be burdened with substantial evidence-gathering requirements and exceedingly restrictive rules of engagement.

During my first tour in Iraq in 2006, we already required documentation such as photographs, witness testimony, and lengthy reports for every detainee. These requirements were time consuming and tedious, and they pushed the limits of tactical feasibility. Combined with the frequency of detainee releases, the process could be incredibly frustrating to team leaders and platoon commanders anxious to secure an area from constant unseen threats. Asking more for less is change in the wrong direction.

Proponents of the criminal justice approach argue that adjustments can and will be made to accommodate the realities of the combat environment. This is doubtful considering the legal limitations of adjusting our criminal justice system while utilizing its courts, but even if it were true, the result would be a patchwork policy with a flimsy foundation. Inventing a system that confuses our warfighters, restricts their tactical capabilities, and breeds inefficiency through loopholes and technicalities does not constitute an improvement.

The alternative to criminal prosecution is the law of war construction, which uses the international law of armed conflict as the backbone of a system that acknowledges the differences between military operations and domestic law enforcement. All combatants have clearly defined rights and responsibilities under the law of armed conflict, and there are clear guidelines that illustrate the relationship of these rights and responsibilities. Rights are maintained by those who abide by their responsibilities. Because of this, there are clear incentives to abide by the law’s parameters, a fact that both we and our enemies understand quite well.

Perhaps the most significant benefit of this framework is that it is designed for combat operations, and therefore ties together the various dimensions of detention operations with a comprehensive policy and common language. Among other rights, these internationally accepted guidelines give us the explicit right to hold enemy combatants until the completion of hostilities. This may or may not be in our best tactical or strategic interests, but under this system we have the right to make that determination, not civilian courts. Rules of engagement are determined by commanders who understand the necessities on the ground, the parameters of allowable conduct, and the moral imperatives represented by the American public through their elected officials. Unlike the criminal justice paradigm, this system can easily adapt to a variety of conflicts without dramatically changing its core components.

To the grunt, this debate is not philosophical. The decision to shift to a criminal justice framework for detention policy would not only undermine the effectiveness of military detentions, it would needlessly and dramatically heighten the risks for those who already shoulder the heaviest burden.