Duke Law Discussion of Theater Detention Operations

Some time back, I spoke at a panel at Duke Law School on detention policy alongside, among others, Michael Gottlieb, who had just completed a fourteen month tour as the top civilian official in Task Force 435 in Afghanistan. As I noted at the time, I found Gottlieb’s remarks especially valuable. Indeed, I have never seen or heard a richer account of detention operations in Afghanistan. I asked him at the time to write up his remarks for posting to Lawfare, but because he was soon to return to a position in the White House Counsel’s office, this proved to be impossible. So instead, I took the liberty of having his remarks transcribed and have posted them here, with some stylistic edits and some edits he felt necessary to correct inaccuracies and to provide greater clarity or context to certain passages of his spoken remarks. They provide, in my judgment, an excellent window onto a truly under-discussed aspect of the detention debate. Audio of the entire panel, which also included valuable contributions from Bobby and from Columbia law professor Trevor Morrison, is available here for those readers who want to hear the whole thing. I have not included all of Gottlieb’s remarks–merely those that describe the problems and practice of theater internment operations--and as I say, we have adapted the transcript somewhat to make it more readable and precise. I have included other people’s remarks only where necessary to explain the context for Gottlieb’s comments. I have also been asked to emphasize that Gottlieb was not employed by the federal government when he made his remarks, and that in making his remarks he was speaking for himself rather than his former employer (the State Department) or his current one (the White House). Gottlieb began his remarks by distinguishing theater detention operations from detention operations in Guantanamo:

One of the differences between doing theater detention operations, as opposed to having to deal with the thorny issues at Guantánamo, is that we did not operate under the same microscope, under the same political pressures that applied to detention issues at Guantánamo. We had a much higher volume of detainees coming in and going out, although nothing like Iraq, where I believe the high water mark was around 27,000 held at one time. The high water mark for Afghanistan thus far is around 1600. When I got there it was around 650--so a much smaller population. My command, Joint Task Force 435, was a 3-star command, meaning we were led by a three-star Navy admiral just under General Petraeus. So we were operating at a very high level in the theater with a lot of resources and a lot of people and not that many detainees. So if we can’t get detention policy right with those kinds of resources and that sort of a small population given what we had to deal with, then one could argue that we can’t get it right anywhere. That gave us the opportunity to really experiment with a lot of different changes to the procedures. So over the course of the life of Joint Task Force 435, the Defense Department at a policy level and our task force at the operational level made a number of changes to how detainee cases were reviewed, to how detainee review boards were structured, to how we released individuals, to how we attempted to reintegrate detainees back into their communities, to how we tracked them to try to combat the problem or the perceived problem of recidivism–and I would argue that the numbers we had suggested that it’s more of a perceived problem than a real one, at least in the Afghan theater. So that gave us an opportunity to implement different changes on the ground in the theater. And to do it while operating with a government that was keenly interested in everything that we were doing in the detention realm. The main mission of our task force during the time that I was there was to work ourselves out of a job, essentially to transition detention operations to the government of Afghanistan over a period that began under General McChrystal as a one-year period. And when General Petraeus came in that grew to a two-year, or perhaps a four-year period depending upon the capabilities of our partners and the pace of the overall NATO/ISAF transition effort, “conditions based” always being the relevant modifier to our transition timeline. And so we had to not only answer the question of where to detain for the government of Afghanistan, to provide them a place in which to conduct detention operations, but we also had to engage with the Afghan government in the very difficult questions of how to detain. And so while we’ll talk for most of today about detentions under the law of armed conflict, as informed by a long debate in our courts in the D.C. Circuit and in our executive branch, in Afghanistan they’re talking about something completely different, which is incapacitating terrorist and insurgent threats under their constitution and under their criminal procedure code. We spent more than a year trying to figure out how you transition from holding a population of detainees under the laws of armed conflict, through a cycle of detainee review boards under Department of Defense policy, and ultimately into a system where the host government is actually going to prosecute individuals under its criminal laws, criminal procedure, and its constitution.

Bobby later asked Gottlieb to expand upon his comment that, as Bobby put it,

the same spotlight doesn’t shine on the parallel, identical issues your task force had to grapple with. . . . I wonder if you could talk about how things went in terms of the detainee review board process in Afghanistan, which is the in-theater detention system equivalent to the . . . decision-making process that decides [whether] we going to keep or not keep particular persons [in detention] without . . . the partisan and political spotlight shining on it. How does the system in theater work and what sort of results did you see?

Gottlieb responded:

Just to give you a sense of why that’s fortunate, in 2010, we took in about 1,300 detainees, released about 600. If there were transfer restrictions of the type that currently apply at Guantanamo, that wouldn’t have been possible. And the cost--the counter-insurgency cost and the diplomatic cost--of that would have been immense. Because in theater detention operations, the cost of holding someone is much greater than out of theater because you have a host government, and you have a population that notices. It’s regularly covered in the media and directly affects our ability to win the hearts and minds of the population. The substantive standard that the detainee review boards in Afghanistan have used for some time plays off of the Department of Justice’s March 13^th definition. It asks a question of detainability, and then it asks a question of ongoing threat. The question of detainability is, roughly whether someone is part of or substantially supporting forces associated with 9/11. And the ongoing threat question asks whether continued internment is necessary to mitigate an ongoing threat or if there is some other disposition option that we can rely on? So, could we transfer the person to the government of Afghanistan for prosecution? Could we transfer him into a reintegration and reconciliation program? Or do we feel that even though he was legally detainable, we don’t need to hold the guy anymore because he’s just not dangerous anymore? So that’s the legal standard that the detainee review boards were operating under. We’re coming to a point of having about 3,000 detainee review boards per year. So during my year I watched many of them, Trevor [Morrison] has watched some when he came over and spent some time with us in Afghanistan. One of the major ways that I think the process has changed over time, and one significant way in which I think that we’re different from the Guantánamo review process, is that when you’re doing detention operations in theater, you have access to evidence that is simply not available when you’re separated both by distance and by time in the way that most of the Guantánamo detainees are. So we were able to bring in, I think, 3,000 Afghan witnesses, either in person, through telephonic testimony, by video teleconference, or through letters. And that’s really important because when you’re dealing with the kinds of intelligence-based captures that you deal with in a theater of combat, it’s really important to have a sort of perspective that may be a little bit different from the intelligence sources that lead to the capture. And people who are from the villages--family members, elders, tribal leaders--can occasionally provide a richer picture than some of your intelligence sources may be able to provide. On the other hand, sometimes, you’ll get four elders from the detainee’s village who come in to testify. And they say, “I’ve known this guy for twenty years. He would never do anything wrong. He’s, you know, a great model citizen.” And then when the recorder starts to ask questions of the [witnesses], they say, “How do you know him?” “Well, I’ve never actually met him before, but you know, his family tells me…” “Well, how do you know the family?” “Well, I haven’t really met the family but, you know, I know the name.” So there are varying degrees of reliability in this process, as there are in a criminal trial, in criminal testimony that you’d see in the United States. But the witnesses were very important, not only in the sense of having a more robust process but also in terms of engagement with the Afghans who, before we allowed Afghan witnesses into the process, had absolutely no understanding of what happened to detainees when they would come into United States detention. It was largely a process shrouded in secrecy. Media was not allowed in. Journalists were not allowed in. All of those things changed over the course of the year there. So we have the press that regularly comes and watches the detainee review boards there. We have the ICRC that can monitor virtually anytime they want. The Afghan Independent Human Right Commission was allowed in to see the process. And I think that transparency helped make the process more substantial. I think it allowed us to take good lessons learned from people who came in--people like Trevor who came in and watched and made suggestions on how to reform the process. And little things, little suggestions, caused us to change over time--something as small as the script that a recorder used. The recorders play a sort of neutral fact-presenting role in front of the boards. The script that they were using created some sort of abnormalities in the process whereby a lot of information that’s unclassified was finding its way into the closed session, or the classified session. Just by changing lines in a script, we discovered that we could make sure that more, or almost all, of the unclassified evidence would be presented in a setting where the detainee could hear it and contest it. So, by tweaking little things like that over the course of the year, I think, we made it a far more robust process and one that looks quite different from how the CSRTs at Guantanamo looked.

Bobby then asked Gottlieb about third-country nationals detained in Afghanistan. “I’m not sure how much you’re able or free to say about that, but I’d love to know in what way does that present problems for our detention process, and in what way does it present problems for the ongoing effort to shift detention or prosecution responsibility into the Afghan system? And related to that, do the Afghans have a noncriminal detention framework? Are they going to have one?” Gottlieb’s response:

I’ll give it my best shot. The first thing to understand is that the number is very small. So of 1,600–approximately–detainees held by the United States in Afghanistan, the number of third-country nationals is less than 50. Roughly two thirds of that number are Pakistani. So the number of folks who are truly from out-of-theater is very small. It does present a challenge for transition because you have a number of third-country nationals who are present, and many of them are from countries that you would predict--and you’d be correct--are very difficult for us to return detainees to for a variety of reasons. So there are difficulties in transferring them to their home countries. There are difficulties in continuing to hold them. And there are limited disposition options outside of that, because, as you may guess, the government of Afghanistan is not particularly interested in prosecuting third-country nationals who we have held for a long period of time at Bagram. So it does present a problem for us in the same way that folks have faced problems working in D.C. for several years now to find disposition options for folks in Guantánamo. That same process exists for the third-country nationals at Parwan, and I think that’s about the limit of what I can say. Does Afghanistan have noncriminal detention options? No. The only authorities under which the government of Afghanistan can detain derive from its criminal law, criminal procedure, and its constitution. The United States for many years has been engaged in a dialogue with the Karzai administration about recognizing some form of detention authority other than Afghanistan’s ordinary criminal process. Why is that? The Afghan criminal procedure code requires any person who is detained--and detention is really only recognized by the Afghan police or its security force, its national director of security--those people have to be turned over to a prosecutor in 72 hours, and they have to be brought to trial in 15 days. There is a one-time, 15-day extension that’s allowed. The reality on the ground is that those restrictions, those rules are never followed in full. You would be hard-pressed to find any one of the 18,000 individuals held in the Afghan prison system who was brought to trial within 15 days. And there may be some who were brought to trial within 30 days, but it’s a small number. And even if fully resourced, in other words even if they had the kind of money that they don’t have now, there’s more than a hundred districts of the just under four hundred districts in Afghanistan that have no judge, and just short of that number that have no prosecutor. So if you’re imagining how this system could function, especially as Afghanistan begins to take more responsibility for its security operations, they simply don’t have the capability to bring most people to criminal trial in the time frames that are set up by their law. Not to mention that their law does not recognize an affirmative detention authority for the army, which is doing most of the clearing operations, and therefore will do most of the apprehending of individuals on the field. There is no provision for the use of intelligence in criminal trials. In fact, there are no rules of evidence in Afghanistan, so it stands to reason that there would be no provisions for the use of classified information. So the challenge that you’re facing if if you want to take a population of roughly 1,500 detainees and put them into the Afghan criminal justice system so that they can bring all of these people under their law, is an immense one, because they don’t have the legal structure for it, because they don’t have the personnel for it, and because it’s difficult to imagine, given the limited resources that their government has to deal with, a time when they will have those assets. There has been this ongoing discussion between the U.S. government and the Afghan government about the need to recognize some other type of detention authority, even if only limited, because otherwise the detentions that will take place will take place in an extrajudicial fashion, and you may wind up with some of the problems that Pakistan and its military has faced in prosecuting its counterinsurgency, which is something that no responsible government would want. So there is that ongoing discussion. It remains to be seen whether Afghanistan will adopt any of those measures. If I had to guess I would say that they probably won’t, and there are reasons for that that are tied to the way that President Karzai views the conflict and the political pressures that he faces in his parliament.

An audience member later asked the following question:

You touched on the detainee review board, but broadening that out a little bit, let’s say I’m a terrorist over there, an Afghani terrorist. You catch me. When does my legal process begin and how are you going to treat me? How long is that hearing going to last? Besides teaching me how to read, what are you going to do for me? And then in the end, if I’m a hard-core terrorist, where am I going? Or if I’m a good guy, so to speak, how do you release me then?

Gottlieb responded as follows:

For any individual apprehended, there are two tracks. There are people who are apprehended by U.S. forces, and people who are apprehended by NATO-ISAF coalition forces, and there are two separate systems that are used. I’ll focus on the U.S. system. The U.S. system provides that if you’re captured, within 14 days, you’ve either got to be released or be transferred to our theater internment facility. And there are some limited exceptions to that, but they’re very narrow. You receive your first detainee review board within 60 days. So within 60 days you have a personal representative–not a lawyer, but a personal representative–who helps you prepare your case, and you have your hearing before an administrative review panel made up of three field-grade officers. And they decide those two questions I talked about before: the question of detainability and the question of ongoing threat. If the board decides that internment is the appropriate option, which happens about 60 percent of the time, at least from the past year, you’ll receive another board every six months until such time that you’re released. And each new board takes up the question as a new question. In other words, they don’t give deference to the previous board decision. They’re asking the question again: Is this person legally detainable and is there a continuing security need to detain the person? While they’re in the facility, they have access to not just literacy programs but there are also tailoring programs where they learn how to be tailors with sewing machines that are being provided for them; there are math programs; there is an agricultural program where they learn drip irrigation techniques and how to do better farming; and there is even, believe it or not, a bee-keeping program that’s being put into place by a U.S. Department of Agriculture representative who works at the facility. All of these programs are linked to the kind of U.S. Government development strategy that exists for Afghanistan to try to focus on the types of trades and vocational needs that exist. And we’re actually in partnership now with the British, who funded a vocational technical training facility that’s teaching carpentry, masonry skills, auto repair--things like that--so that when detainees leave, they’ll have some kind of a skill. The idea being that if the majority of the people that you have in the facility are accidental guerillas or people who are fighting because they didn’t have another job, you have provided them with something that’s an alternative to rejoining the fight at such time that they’re released. The average stay in the facility is around 1.2 years, so the average detainee is not staying there for long periods of time. And the number of detainees who have been held for more than three years is very small. It’s less than 8 percent of the population that has been held for more than three years.

At this point, Trevor Morrison shifted the conversation slightly to the use of the Afghan criminal justice system to handle certain detainees, observing that,

Even with people who are found to meet the legal criteria for continued detention the board will frequently now make a determination that the best way for that threat to be dealt with is for the person to continue to be held but pursuant to criminal conviction and sentence in the Afghan system. And there is now a national security court, presided over by Afghan judges on the base at Bagram. And there’s a whole lot of lawyer work and investigative work being done to try and fit the round peg of an intelligence-based capture into the square hole of an evidence-based prosecution. And the debate here in the United States about detention versus prosecution proceeds, I often find, sort of based on an assumption that these things just are totally irreconcilable, and I think the evidence on the ground in Afghanistan is that that’s false. They’re very difficult to reconcile, and it doesn’t always work, and one shouldn’t assume a sort of neat transferability from one domain to the next. But a big chunk of effort is being put into finding a way to move people out of U.S. detention operations when appropriate and to subject them to criminal charges in the Afghan system. You know, there are evidence labs at Bagram. I understand they’re sort of teaching Afghan prosecutors and judges how to think about things like fingerprint evidence, DNA evidence, ballistics testing, et cetera. There are a whole lot of resources being poured into this and it strikes me as a very substantial success story at this point. How quickly the capacity can be built up to deal with how many cases is the question, but it’s happening to some degree.

Gottlieb responded as follows:

Let me just amplify that last point. When our task force stood up–I got there in January 2010–there was no specialized court to try insurgents in Afghanistan. That was built in the first half of 2010. The first trial took place in June–the first ever trial of that sort, which took place at what is essentially a specialized national security court that exists alongside the detention facility in Parwan. When I left, they had done 80 trials. And, as we understand it, for the first time in Afghan history, there were trials with an Afghan expert--an Afghan fingerprint expert--to testify about not only the science of matching a fingerprint, but also its basis in the Qur’an, which was interesting to watch.

An audience member asked what this textual basis was. And Gottlieb said he was “not competent to describe it.” But, he said, the justice system’s capacity has,

come so far to the point where the judges began to ask more and more difficult questions, such as: How do IEDs work? How powerful are they? How does DNA evidence work? They wanted experts to come in and teach them about the science of DNA testing. And as I was leaving, the prosecutors were readying a trial to try ten detainees in one trial, all being held in the facility, all of whom had been biometrically matched to a IED cache where they’d found something like 300 unexploded IEDs. They ran all the prints on them. They compared the prints to the population that were being held in Parwan, and they matched it to ten defendants. And the prosecutors who had never done an insurgent case prior to June were getting ready to try ten defendants in what is a pretty complex case right as I was leaving. So there has been a lot of progress. Huge challenges remain. Some of our investigators are illiterate. Some of the challenges are immense. So I don’t want to overstate it, but I think really significant progress has been made.

Bobby then asked whether the task force was “getting a lot of lessons learned from Iraq.” Gottlieb responded:

On the U.S. side, yes. Absolutely. The former detention command and the current . . . lingering elements of the detention command, there’s this constant interchange between that and [Task Forc] 435. Honestly, the Afghans aren’t particularly interested in what happened in Iraq. And the quickest way to lose an audience in Afghanistan is to say “Iraq” or “the way we did things in Iraq was… .” That’s not a winning strategy for persuasion with the Afghans. So . . . instead of that, we tried to use, at least on the criminal side, lessons learned from our federal courts, we tried to internationalize the process to bring the British in [and] bring the Australians in to talk about how they do things in their court system. And we found that to be far more effective.

An audience member then asked whether each member of the panel could “describe exactly what the United States says its authority is for indefinite detention, understanding what you all have said already that the government, all three areas of the government are in agreement that we can do that.” The other panel members all focused on the authority to detain people who are “part of” enemy forces. Gottlieb spoke last:

And as if that weren’t complicated enough, my colleagues here, perhaps deliberately, perhaps not, danced around what may be the hardest question, which is not membership or “part of,” but what do you do with the people who aren’t part of, but are providing support to these organizations? And that question is a very, very difficult and very contentious one, and it’s incredibly important in theater operations because you have, for example, large numbers of individuals in Afghanistan who are not part of the Taliban and [who] are not part of the Haqqani network, and not part of the HIG, but because of a lack of security, because of night letters, because of intimidation, end up providing significant support to insurgent activities that directly result in the deaths of Afghan civilians and coalition forces. And so the legal theory on which you say [that] we can hold this farmer, who we all agree is not part of the Taliban and not part of the Haqqani network, but, for the last two to three years has provided significant and demonstrable support to those organizations for whatever reasons–that debate is a very important one, an unresolved one, and, one that by itself I think we could spend two hours talking about.