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Turning Over the DFIP Part II: What Is the Long-Term Plan for the al Qaeda Cluster We Will Still Hold There?

Robert Chesney
Friday, March 9, 2012, 2:42 PM
Note this passage in the coverage by the Times:
The United States will retain custody of non-Afghan prisoners, about 50 mostly Al Qaeda militants from Pakistan, Arab countries and Central Asia, the American officials said.

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Note this passage in the coverage by the Times:
The United States will retain custody of non-Afghan prisoners, about 50 mostly Al Qaeda militants from Pakistan, Arab countries and Central Asia, the American officials said. An American military official declined to comment on whether those prisoners had been captured on the Afghan battlefield.
Sounds great...for now.  But does anyone doubt that this merely kicks the can down the road a bit further?  To be sure, this might turn out to be a stable arrangement, capable of lasting for years and years.  But it is at least as likely that it won't, and that it will instead turn out to be merely a way-station on the road to the genuine end of US detention ops in Afghanistan.  In that case--and let's assume here both that these ~50 detainees are indeed who we claim them to be, and that we continue at the time to assert authority to detain them as part of a US-al Qaeda conflict--where do we take them?  It is the same situation that we faced beginning in January 2009 in Iraq, and we know that in that case we ended up with very hard choices in the end, culminating the Daqduq mess.  Note that I'm not suggesting there is an obvious silver bullet solution; options ranging from criminal prosecution to military detention in the United States or at GTMO plainly face an array of significant domestic political hurdles.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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