The struggle to strike a balance in handling insurgents raises fundamental legal questions about where to take them, how long to hold them and when to fold each case.
Earlier this year, the U.S. military scooped up a Somali man off the coast of Africa suspected of conspiring with terrorist groups al-Shabaab and al-Qaida in the Arabian Peninsula. The man, Ahmed Abdulkadir Warsame, was whisked away to a Navy ship where he was secretly interrogated for more than two months. Then the U.S. government changed course, read him his legal rights and announced to the world on July 5 it would bring him to New York to stand trial in federal court.
The case threw into sharp relief what critics claim is the lack of a coherent policy by the Obama administration to handle terrorism suspects.
"Warsame showcases the tangled mess of the Obama administration's detention policy and practice," House Intelligence Chairman Mike Rogers, R-Mich., said at the time. Rogers supports trying terrorism suspects before military commissions and has called on the administration to work with Congress to develop comprehensive legislation for handling detainees.
Another critic, Senate Armed Services ranking member John McCain, R-Ariz., has added a controversial provision to the National Defense Authorization Act that would put all terror suspects into immediate military custody, rather than permitting them to be handled by law enforcement agencies like the FBI.
A decade after the Sept. 11, 2001 terrorist attacks, the U.S. government is struggling to strike a balance in its policy for handling insurgents caught abroad, raising fundamental legal questions about where to take them, how long to hold them and when to fold each case.
Because the "enemy" is not a state, it has caused confusion over how to grapple with the detainees, a senior official told National Journal.
It boils down to handling detainees on a case-by-case basis, the official acknowledged. Several factors come into play for each detainee, such as how much of a threat does the person represent, what country is he from and how might detaining him affect U.S. foreign relations, the official said. Most detainees are held abroad under laws governing armed conflict, while some - like Warsame - are moved into criminal justice proceedings.
The former George W. Bush administration used the military detention center at Guantanamo Bay to hold newly caught detainees as well as facilities like the infamous Abu Ghraib prison in Iraq. The CIA also had a network of secret prisons abroad.
The Obama administration has put a moratorium on bringing detainees to Guantanamo and has been trying to close prisons operated by the U.S. military in Afghanistan and Iraq. But with Afghan civil institutions slow to develop, the military expects to keep its Afghanistan Detention Facility in Parwan operating beyond a planned closure next year, and actually recently expanded the facility's capacity. "When you talk about how long we might be detaining, all I can really say is it's going to be conditions based," the official said.
NATO this week also decided to stop transferring detainees to several prisons operated by Afghanistan authorities in anticipation of a United Nations report alleging prisoners have been abused. The U.S. military will review the report but emphasizes the majority of detainees it captures go to the facility it runs in Parwan, said Lt. Col. Todd Breasseale, a Defense spokesman.
"The U.S. continues to take very seriously such allegations and works to consistently ensure the safe and humane treatment of its detainees," he said. "Until we can verify the observations in the pending [U.N.] report, we will continue to work with our allies on resolving this issue. I won't speculate on future decisions involving new captures."
The U.S. military also operates what are known as smaller, field detention sites in Afghanistan, where detainees are typically held for about 72 hours before being set free or transferred, Breasseale said. And the military continues to operate a small internment facility in Iraq under a security agreement, he added.
Obama issued an executive order halting the CIA's detention and interrogation program. But the agency can still briefly hold terrorism suspects abroad while transferring them, and jointly question suspects being held by other countries, a U.S. counterterrorism official told National Journal.
Authority for such debriefings must be granted by a senior officer in Washington, an official said, and it is not given lightly. However the official said the U.S. government should be able to interview suspected terrorists picked up overseas if they might have information about plots against American interests.
But critics of the Obama administration fear an aversion has set in to capturing terrorism suspects abroad because of confusion about what to do with them. Rather than capture insurgents that might have intelligence, critics worry the administration relies too much on drone attacks or lethal operations to kill them.
Human rights groups, on the other hand, argue the administration is not giving detainees fair legal proceedings.
"One of the big disagreements that we have with the military is that we think international human rights laws should apply," said Daphne Eviatar, a senior associate at Human Rights First, who traveled to Afghanistan earlier this year to view hearings that detainees are given.
She, along with other human rights representatives, want the military to reduce the amount of classified evidence kept hidden during the hearings and provide more competent military lawyers for detainees. About 2,500 detainees are held at the facility in Parwan, but there are only about 16 personal representatives for them. "They basically are having secret trials and holding people indefinitely for years," Eviatar said.