Iraq and the Military Detention Debate: Firsthand Perspectives from the Other War, 2003-2010Virginia Journal of International Law (2011)
AbstractIn this Article, I examine the law and policy of military detention through the lens of After Action Reports produced by U.S. military Judge Advocates and interviews with non-lawyer service members directly involved with captures and detention in Iraq. Drawing heavily on these primary sources, I seek to enrich the context of the U.S. detention policy debate in general, and more specifically to highlight and dispute several assumptions running through that debate as it is currently conducted. The lessons taught by the American experience in Iraq suggest, for example, that detention policy progresses through a cycle in relation to sustained overseas combat deployments: It begins with a relatively discretionary approach premised on traditional law of war authorities and administered directly by the United Sates, but over time both legal and strategic considerations combine to shift the focus to host state criminal prosecution and host state administration of erstwhile detention facilities. As a consequence, one should not assume that detention regimes and facilities that may exist at one point in time in an overseas combat setting will continue to be available over the long term. The evolution of U.S. military practice and policy over the past seven years in Iraq also calls into question the common assumption that evidence-gathering and other activities associated with criminal prosecution are entirely alien to and incompatible with military training, doctrine, practice and culture, as well as the related assumption that the realms of criminal law enforcement and military detention without criminal charge cannot coexist. These lessons have direct implications for the future course of U.S. detention policy and practice in Afghanistan, and more generally help to reduce the artificiality of the larger detention policy debate.
Citation InformationRobert Chesney. "Iraq and the Military Detention Debate: Firsthand Perspectives from the Other War, 2003-2010" Virginia Journal of International Law Vol. 51 Iss. 3 (2011)
Available at: http://works.bepress.com/robert_chesney/10/