I spoke to national security law expert Robert Chesney yesterday, who had some thoughts about the Geneva Conventions prohibiting the detention of prisoners of war at sea with relation to the Ahmed Abdulkadir Warsame case.
The aspect of the Geneva Conventions that does apply here is Common Article 3, no more and no less. It is silent on this particular question, so does not forbid this practice. All that said, I suspect one can make an argument that prison ships separately are forbidden as a matter of simple customary law of war. I've never looked into it, so that's just a guess. But I bet there is support for it. But I also suspect that you would be hard pressed to show that this means a state cannot use a ship for interim detention when there are no other realistic options, as opposed to a prohibition on using a ship as the long-term detention option. The US obviously is aiming for the former, not the latter, and I think it would be very hard indeed to show this violates customary law. Note that the US explicitly informed the Red Cross in this case, and allowed Red Cross reps to come onship and visit with the detainee.
Bottom line: it probably would violate customary law to keep a prison barge as the long-term detention option (a floating GTMO), but I do not think there is anything wrong with using a ship as an interim measure in these circumstances, especially where as here the guy was captured at sea in the first instance.
He also disagreed with my argument that "the decision to hold Warsame overseas under military detention for "intelligence purposes," then transfer him to a civilian court for prosecution, is a decision with all the maddening hallmarks of Obamaism."
I don't see it that way. I think this model is not just a split-the-difference compromise, but rather a savvy and nuanced approach that uses military means at the stage when that makes most sense (effectuating the capture), intelligence community means at the stage when that makes most sense (I gather that the interrogation was run primarily by ODNI-managed personnel, which must mean the High Value Interrogation Group (HIG), which is designed for just this purpose), and law enforcement means when that makes the most sense (effectuating a long-term detention solution for a dangerous person). In short, I don't think this has anything whatsoever to do with attempting to appease GOP objections – I think it is operationally driven, and a nice model for how such things should be handled when possible.
I don't agree that this is a "nice model" for the reasons I outlined yesterday -- in particular I have concerns about the voluntariness of post-Miranda statements under such conditions and whether an individual in said circumstance really understands the significance of waiving their right against self-incrimination. But ultimately temporary detention at sea followed by prosecution in an Article III court is preferable to indefinite detention at Gitmo. What happens, though, if someone like this is acquitted? Are we back to the farce of post-acquittal law of war detention? And does that mean being sent to Gitmo anyway?
