To long-term critics of the so-called “war on terror,” one of the most confounding elements of President Barack Obama's foreign policy has been his administration's seeming preference for killing, rather than capturing, alleged terrorists. Obama and other senior officials have repeatedly stated they prefer to take perceived enemies alive, but the numbers paint a distinctly different picture.
For the last two months, however, the US has once again found itself in the business of detaining a prisoner in this ill-defined and seemingly endless battle. The administration's secrecy surrounding the conditions of her imprisonment have led some lawyers and legal analysis to raise questions about what rights and protections she's being afforded, and what policy guidelines will govern treatment of new detainees in what some now refer to as the Forever War.
In May, US Special Forces launched a rare raid inside Syria's borders that resulted in the death of Abu Sayyaf, an alleged senior commander of ISIL (also known as ISIS or the Islamic State). The same raid also resulted in the capture of Sayyaf's wife, Umm Sayyaf. She is now being held by the US military in Iraq, though little is known about her condition, her precise location, the legal framework under which she's being held, where she'll eventually end up, or when she might be transferred either to US soil or another country.
When asked if the military has come to any conclusions regarding the legal status of Sayyaf, a Pentagon spokesperson offered the same answer the administration has given since her capture. “We are working to determine an ultimate disposition for the detainee that best supports the national security of the United States and that of our allies and partners, consistent with U.S. domestic and international law,” said Henrietta Levin, Defense Department Spokeswoman, in an email.
But that explanation doesn't go far enough, according to some analysts. “Regardless of what Ms. Sayyaf is accused of doing, her detention must be lawful, which means she must be afforded basic rights and protections,” said Jonathan Horowitz, who wrote about the issue for the legal blog Just Security. “As a basic first step, the United States needs to explain what procedures are regulating Ms. Sayyaf’s detention and what due process guarantees she’s being afforded.”
Nathalie Weizmann, who co-authored a piece on Sayyaf's detention for another legal blog called Lawfare, echoes some of Horowitz's concerns. “From an international law perspective, we do not know if the administration has since confirmed that Umm Sayyaf is a member of ISIL or poses any particular threat,” she said. “Nor do we know whether the administration has ensured any safeguards during her deprivation of liberty, including the opportunity to challenge her detention, access to legal assistance, and family contact.”
Beyond those fundamental requirements, one lawyer who has represented Guantanamo Bay detainees says the U.S. must ensure a basic level of safety for Sayyaf, both during her confinement and following a potential transfer to another country. “International law requires a certain baseline of humane treatment, if not more. In this instance, compliance requires special protections, including holding her apart from any male detainees, and providing for specific health needs,” said Pardiss Kebriaei, of the Center for Constitutional Rights. “The requirement of humane treatment also prohibits the United States from transferring her to the custody of another state where there is a substantial risk of mistreatment. The US has suggested it might transfer her to Iraqi custody. This would be in violation of Common Article 3 and the Convention Against Torture, given the widespread, documented occurrence of torture and mistreatment in Iraqi prisons.”
According to media accounts, the administration seemingly had no plan for what to do with Sayyaf once she was captured, which strikes some as a baffling shortfall. “How the government launched a specific capture mission without a plan for what to do with the captive is almost incomprehensible,” said Caitlin Steinke, staff lawyer at International Justice Network. Steinke, who has represented detainees held at Bagram air base in Afghanistan, added that the president who was elected to close Guantanamo must ensure that his administration doesn't revive the practice of imprisonment without trial. “The government should either bring Ms. Sayyaf to the United States to face charges in federal court, or release her. Anything short of this amounts to the unlawful and tyrannical practice of indefinite detention.”
Kebriaei, the attorney who has represented Guantanamo prisoners, added that the longer the U.S. holds Sayyaf, the greater the requirement under international law to show she is indeed a threat. “At a minimum, the universal prohibition against arbitrary deprivation of liberty would prohibit her detention unless absolutely necessary, for imperative security reasons — a burden that would increase with the length of detention — and would otherwise require that she be charged or released,” said Kebriaei.
The debate around Sayyaf's detention comes as the White House continues to struggle with its stated goal of closing the prison at Guantanamo Bay, an early Obama priority, but one that has waxed and waned in importance over his two terms. There are currently 116 detainees at Guantanamo, of which only a handful can be charged with a crime and tried in the legal system in place there.
Another hotly contested issue is the legal authority the Obama administration is using to wage the war on ISIL. Levin, the Defense Department spokeswoman, said that a 60-word law written in the days after the attacks of September 11, 2001, gives the president the power to bomb ISIL personnel — and to hold Sayyaf. “Umm Sayyaf is suspected of being part of ISIL,” Levin said. “The President may rely on the 2001 Authorization for Use of Military Force as statutory authority for the detention of individuals who are part of ISIL, just as he may rely on that statute as authority for airstrike operations against ISIL.”
That rationale, said Kebriaei, is “far from solid, and highly contested.”
Ramzi Kassem, a CUNY law professor who has represented clients held at Guantanamo, Bagram, and CIA black sites, says the secrecy around Sayyaf's detention — along with the entire paradigm of relying on the 2001 law to expand executive authority — suggests a worrisome continuation of practices that are arguably outside the bounds of international law. “I'm troubled by this development, if it signals a trend, or a model, or a precedent, because that's the way U.S. government bureaucracies work,” said Kassem. “Once they've done it a first time, then they think, 'OK, this is an option for us.' And they'll be tempted to do it again, and in the same way.”