Jim Stein asks an important question in the Newsweek article: What Will US Forces Do With ISIS Prisoners? Stein critically examines the current policy or lack thereof that the U.S. is taking to preempt issues with ISIS detainees. The Pentagon currently claims no policy as for what to do with any potential prisoners of war from ISIS. Essentially, the White House is turning to Iraq to take the lead on the war against the Islamic State. It appears that the U.S. will just be acting as the ‘brawn’. According to the Newsweek article, it is currently unclear where the U.S. stands on how involved they will be in this war. Though the U.S. theoretically has a “no-combat-boots on the ground” policy, it is now widely known that American forces did try to save James Foley. The country’s position is “confusing and contradictory.”
Similar to the its behavior post-9/11, the U.S. is preparing to retaliate against ‘the enemy’ without preparing for long-term repercussions such as detaining prisoners. If the U.S. doesn’t form a policy for holding ISIS prisoners there will be another Guantanamo situation, or worse, another Abu Ghraib tragedy. Stein points out the glaring issue: How will the U.S. be able to eventually put the prisoners on trial if intelligence is gathered through Iraqi torture, even if it is not directly at the hands of the U.S.? Stein proposes killing ISIS leaders and top lieutenants via drone strike rather than capturing and interrogating lower level ISIS members.
Wittes contests on Law Fare blog that if the U.S. only participates in drone strikes they will not be in engaging in the captre of ISIS troops. Wittes also suggests that Iraqi forces will take responsibility for the prisoners and the U.S. will have to look the other way. He states that there should only be concern if the U.S. increases their ground mission and transfers any detainees to Iraqi forces.
Jonathon Horowitz responds to Wittes’ comments on the Just Security blog site, claiming Wittes minimized several issues of Stein’s Newsweek article. He criticizes Wittes’ statement that the U.S. needs only to “look the other way as abuse of captives take place that our forces would not tolerate.” Horowitz explains how the Leahy Law asserts that the U.S. cannot offer assistance to states that have violated certain human rights (including torture) even in the most extreme situations. Other issues also arise with joint-interrogation and the non-refoulement principle, also referred to as the extradition process. The Convention Against Torture prohibits states from extraditing a person to another state where there is reason to believe the person could be tortured. Horowitz finishes his post by warning against making the same mistakes from Afghanistan and Iraq, urging people not to dismiss the issues discussed in Stein’s article, and to be prepared for the possibility of more ISIS detainees.
I think that Horowitz is appropriately concerned about the foreseeable future of the U.S.’s role in detaining ISIS members. We have discussed in class the legal repercussions the U.S. could face after the treatment Al Qaeda-related detainees at the hands indirectly or directly of the U.S. This issue reaches further than just a human rights violation because there are now an unknown number of detainees that won’t be put on trial and can’t be released in the U.S. or their own countries. Trials can’t be conducted because the U.S. can’t use evidence gathered by means of torture, nor will the U.S. engage in trials that could potentially endanger national security. Stein and Horowitz state that the same issue will occur with ISIS. Wittes predicts that it won’t come to this because the U.S. isn’t involved in the ground fight and will leave detention to Iraq. However, this claim is naïve as the U.S. is very involved with ISIS detainees because of their investment in defeating ISIS. It is very likely that the U.S. will become more involved in the interrogations, and by allowing Iraq to take charge in interrogation the U.S. will be violating the Leahy Law and Convention Against Torture act as Horowitz discussed. The U.S. is aiding the Iraq forces with ISIS, but it could be argued that the U.S. is actually working alongside Iraq for a common goal. However, the U.S. is aware of Iraq’s interrogation methods and is still turning to Iraq for interrogation. These potential or even current issues have been identified. It is now the United State’s responsibility to develop a lawful and practical approach to detain prisoners.