Parole for Guantánamo Releasees: Revisiting a Time-tested Concept

By: LTC Erich Wagner, USMCR

Since the United States began its fight against global jihadists more than ten years ago, the U.S. government has struggled to find the right term to describe those fighters who take up jihadist activities after their release from the detention camp at the U.S. Naval Station in Guantánamo Bay, Cuba. In recent years, released prisoners who return to battle have been described as "recidivist," "returning to the battlefield," "reengaging," "returning to the fight," and "returning to militant activities."2 The terms, while similar, are not equivalent, nor are they appropriate for the former prisoners. As Mark Twain once noted, "The difference between the right word and the almost right word is the difference between lightning and a lightning bug."

That was a way of putting it—not very satisfactory... Leaving one still with the intolerable wrestle With words and meanings. - T.S. Eliot

Part of the difficulty rests with the conditions under which prisoners were first detained and brought to Guantánamo Bay, and the terms under which they were subsequently released. This article begins with a discussion of how the terms we use for those former Guantanamo prisoners affect not only how we perceive them, but also their legal status once they leave U.S. custody. It then looks at the concept of parole for prisoners of war in both the Islamic tradition and in the Geneva Conventions, and concludes by arguing for the establishment of a systematic parole procedure that confers the correct legal status on these released prisoners under the International Laws of Armed Conflict (LOAC).3

Status Under the Law

In most systems of law, rights, responsibilities, and due process depend to a large degree on definitions of status. The terms we choose to define the status of former prisoners of war (POWs) therefore have a direct bearing on their standing before the law, and on how we may legally deal with them if they are recaptured. The legal gap between a paroled fighter who is recaptured after returning to the battlefield and the re-arrest of a common criminal who offends again is vast, so to call both of them "recidivists," as some U.S. officials have done, is to ignore the implications of the recaptured fighter's status under the LOAC. It is difficult to find any crime in the criminal justice system that is analogous to a fighter being taken prisoner in the course of armed conflict.

The George W. Bush administration (2001–2009) was adamant that prisoners from Afghanistan and al Qaeda do not meet the criteria to be classified as legal combatants according to the laws of war. Bush was, nevertheless, very careful to make sure that while such prisoners did not merit the rights of POWs, they would, for humanitarian reasons, be offered the same treatment as POWs under the 1949 Geneva Convention (know as the Third Geneva Convention).4 The correctness of this determination is beyond the scope of this article; its adoption, however, has a direct bearing on the detainees' status both as prisoners and subsequently, after they are released.

According to the U.S. Department of Defense (DoD), 779 individuals have been held at Guantánamo since January 2002. The most recent U.S. government report (January 2012) says that 600 have left the facility, eight died while in custody, and 171 remain. Of the 600 released prisoners, 27 percent (161 individuals) were confirmed or suspected by the U.S. government to have engaged in terrorist or insurgent activities post-release.5 To term these 161 individuals "recidivists," as U.S. officials and the press frequently do, is a misnomer that demilitarizes the context of their action and diminishes the gravity of their LOAC violation. It appears to classify the action of retaking arms in violation of an oath not to do so as a civil crime, vice a crime against international law and the acknowledged customs of war, and potentially diminishes the scope of legal retaliation if they are recaptured.

Wartime Parole

The practice of wartime parole has been documented by international scholars to date back at least as far as the Punic Wars between Rome and Carthage (264–146 B.C.).6 Parole is "an engagement by a prisoner of war, upon being set at liberty, that he will not again take up arms against the government by whose forces he was captured, either for a limited period or while hostilities continue."7 The U.S. DoD defines parole more broadly: "Parole agreements are promises given the captor by a POW to fulfill stated conditions, such as not to bear arms or not to escape, in consideration of special privileges, such as release from captivity or lessened restraint."8

Since its inception, parole violation has always been a problem for the detaining power, which often resorted to execution of the recaptured transgressor.9 The system is only as effective as the individual's honor, or his state's enforcement of the cartel; therefore, violators have been treated with severity. Until the Hague Rules of Land Warfare were codified in 1899, no written international convention covered warfare for the European continent. Both these rules and the unratified Brussels Declaration on Laws and Customs of War (1874) treated parole violation with draconian harshness, stating that violators forfeited all rights as POWs. Article 12 of the Hague Regulations attached a sort of capitis deminutio to any breach of parole: anyone who broke his parole forfeited the right to be treated as a POW, and therefore, if recaptured, had the status of an outlaw.10 Under Article 134 of the U.S. Uniform Code of Military Justice, POWs may be tried for a violation of parole, subject to a maximum punishment of confinement at hard labor for six months.11 Article 21 of the Third Geneva Convention lays out specific rights and responsibilities for both the "Detaining Power," the country that imprisoned the enemy combatant, and the prisoner. Specifically:

The Detaining Power may not ... offer release on parole to prisoners of war if the laws and regulations of the Power on which they depend [i.e., the country they serve at the time of capture] forbid them to accept ... [or] only to the extent [that such laws and regulations allow] and subject to the conditions specified therein.12

Article 21 stringently forbids the captor from offering these or soldiers like them a choice they cannot legally accept. For instance, the U.S. and U.K. militaries prohibit their own soldiers who become POWs from accepting parole from the enemy if captured. The official commentary on Article 21 notes, "The Detaining Power is in a way responsible for the application of these laws and regulations, and is not allowed to make any proposals ... which would be inconsistent with [them]."13 Furthermore, Article 21 forbids the "Detaining Power" from coercing or compelling a prisoner to accept liberty in return for promises. A prisoner who is offered the choice between internment or parole "is faced with a problem of conscience which he must be absolutely free to solve. A person who gives his parole gives a personal undertaking on his honor for which he is in the first place responsible to himself."14 [Emphasis added.] Prisoners who do legally accept parole, however, "are bound on their personal honor scrupulously to fulfill ... [the terms] of their paroles and promises." Nor can the "Power on which they depend" legally require or accept service from parolees that violates the terms of their parole.15

A decline in the practice of offering parole to POWs during the 20th century led directly to the current practice of holding captives until the "cessation of hostilities." World War I saw very limited use of parole, both because the warring Powers had the logistical and physical capacity to hold large numbers of POWs, and because serial violations of parole early in the conflict had undermined its value.16 While the Geneva Convention of 1929 mentions parole only twice, and only with regard to notification of prisoner status, the belligerents of World War II made some use of it. At the end of World War II, millions of German captives deemed to pose no further threat were paroled to alleviate overcrowding in Allied prisons, and to reduce the cost of incarcerating and feeding them. As a result, the post-war Powers modified the Geneva Conventions to include parole. The Korean War, the Vietnam conflict, and the first Persian Gulf War (1990–1991), however, all saw only limited utilization of this practice.17

The Current Situation

Asymmetric warfare and non-state combatants have been a persistent aspect of conflict throughout history, and there have been far more of these "small wars," even in the modern era, than conventional state-on-state conflicts.

Nevertheless, the current war against jihadism presents a unique legal conundrum for the United States. Unlike previous conventional fights, where it could be assumed that the defeat of one side would bring an end to hostilities, the conflicts the United States now finds itself in—the so-called "long wars"—have no such obvious end, and the enemies who have been captured are not fighting on behalf of a nation-state. To use the phrase of the Geneva Convention, they have no "Power on which they depend." If members of al Qaeda or other terrorist networks are not considered legal combatants, what are the terms on which they should be released from custody?

On January 11, 2002, the Bush administration shipped its first prisoners from Afghanistan to Camp X-Ray at Guantánamo Bay, Cuba. In the first three months of 2002, the year operations began in Afghanistan, American forces airlifted over 600 prisoners to Guantánamo for long-term detention. Taliban fighters, who had at one time represented a now-defunct state government, necessitated a further definition of enemy captives. It was decided that Taliban prisoners would face prolonged captivity at Guantánamo in a status akin to those al Qaeda members they had harbored, that is, without legal combatant POW status, but rather as unlawful combatants of a rogue regime that had harbored terrorists.18 Ten years later, the United States is still holding many of these "unlawful combatants," while lawyers and politicians argue over their future in a fight without a foreseeable end. Since most of them are not sponsored by a nation-state to which they owe their allegiance,19 however, any pledge per Article 21, not to reengage in hostilities against the United States and its allies after release, relies almost entirely on their personal sense of honor.20 When contemplating the applicability of parole for Guantánamo detainees, Kenneth Anderson, a professor of law at the American University's Washington College, acknowledged the importance of both parties' having a "shared view as to the legitimacy of parole as a practice with its own norms of conduct, and above all an obligation not to return to the fight."21But is this a realistic expectation? As one ethicist put it, do terrorists share a "common universe of meaning" with non-terrorist actors?22 It is difficult for some to imagine how the term "personal honor" could apply to anyone who has been captured fighting with the Taliban or al Qaeda, or any other organization that routinely violates accepted laws of warfare. That being said, when discussing Muslim parole-breakers in the current war, it would be worthwhile to consider Islamic legal views on the subject.

Muslims first codified the rules of warfare based on the Qur'an,23 and Islamic shari'a law, which is based on interpretations of the Qur'an, regulates the international relations of many Muslim states.24 In this conception, the law of war applies as "soon as weapons have been used and armed forces have been deployed, even in the absence of a declaration of war."25 Similarly, Islamic law does not distinguish between inter-state and non-state armed conflicts, primarily because when shari'a law came into being, between the seventh and tenth centuries A.D., the notion of nation states was undefined.26 Accordingly, "the Islamic concept of humanitarian law [shari'a], ‘based on an unlimited belief in Divine Authority,' is applicable everywhere and in all circumstances."27

According to many Muslim scholars, "a POW is considered a guest, rather than a captive whose fate is enslavement. Similar to the principles of the Geneva Conventions, captives or POWs are deemed to be in the hands of the Muslim Power, but not of the individuals or military units that captured them."28 The Qur'an, the Hadith,29 the Sunna (Prophetic traditions), and the four schools of Islamic jurisprudence (fiqh) provide extensive instructions regarding the subject of POWs and when/if they should be taken.30 If a Muslim prisoner gives a pledge not to escape, for instance, he must faithfully observe his promise.31If a prisoner is released conditionally, i.e., paroled, the releasee must abide by the conditions set by his captors and agreed upon by his acceptance of release. If a paroled prisoner of war is recaptured he faces punishment, usually capital. According to Islamic rules, a POW who has escaped his captors and is re-captured should not be punished, except insofar as it might constitute a "breach of parole."32 In at least two instances, the Prophet Muhammad himself is known to have executed parole violators.33 American soldiers who first arrived in Afghanistan in late 2001 noted that, "The Afghans, in keeping with their custom, expect soldiers who have surrendered to abide by the conditions of their surrender agreement and to behave honorably."34 Muslim nations have almost universally adopted the Third Geneva Convention, including the 1977 protocols, and Islamic law and regulations on the parole of POWs appear to be compatible with Article 21 of the Convention.35 Islamic scholar Muhammad Abdel Haleem infers from his study of Islamic holy texts and jurisprudence that, "in the sphere of war and peace, there is nothing in the Qur'an or Hadith which should cause Muslims to feel unable to sign and act according to the modern international conventions."36

The Way Forward

Almost a decade after the first detainees were sent to the prison at Guantánamo Bay, and three years after President Barack Obama promised to close previously, just over a quarter of the 600 former detainees who have left the detention facility are confirmed or suspected to have re-engaged in "terrorist or insurgent activities" against U.S. or allied forces and civilians.38 The span of time between when a detainee leaves Guantánamo and the U.S. intelligence community first learns that he has reengaged in terrorist or insurgent activities is, on average, 2.5 years.39 There are several reasons to suppose that re-engagement rates will increase in the future.

1. Of the 600 detainees known to have been transferred out of Guantánamo since 2002, at least 179 were listed in the high-risk category.40 Those who remain in custody generally are more senior members of jihadist organizations, who have been in custody longest and have the most evidence against them. They have the highest likelihood of taking senior positions should they be released.

2. Previously released prisoners have had time to reconnect with their organizations, reintegrate into terrorist networks, and get back in the fight. Those in rehabilitation programs in places like Saudi Arabia will continue to be released. Also, with more time, more reports of recaptured prisoners will come in, which is one reason the number of reactivated fighters will rise even as the number of released prisoners decreases.

3. U.S. officials acknowledge that detainees who leave Guantánamo are like "rock stars" in the jihadist community.41 It is likely that these former prisoners are viewed as a force multiplier by terrorist organizations, and quickly pulled back into the organization.

4. Some governments are proving unwilling or unable to mitigate the risks posed by prisoners released into their custody. In some instances, jihadis have been set free despite assurances from their governments that they would remain incarcerated.

This raises one of the central questions of this discussion. Given that unlawful combatants (al Qaeda, Taliban, etc.) do not qualify for combatant immunity or legal status, are they still entitled to consideration for parole under the LOAC? POWs are never "entitled" to parole; it is an act based on perceived benefit for the detaining power (for instance, to alleviate overcrowding or exchange prisoners), or for reasons related to the health of the detained as per the Geneva Convention Relative to the Treatment of Prisoners of War. This does not mean, however, that they can never be granted privileges or rights that pertain to lawful combatants. It is useful to think of the Geneva Conventions as a "floor" of rights for POWs, beneath which the detaining power cannot go; that same power, however, can always bestow additional rights at its discretion.

In 2004 the Bush administration created the Administrative Review Board (ARB) process for Guantánamo detainees, where each individual's case is reviewed annually. There is no precedent for such boards, nor are they required by international law, the Geneva Conventions, or Army regulations governing retained personnel.42 "ARBs were created to have a formalized, documented and institutionalized process" for detainee transfers and release evaluations, as a means to correct deficiencies in the previous review system.43

The ARB recommends for each detainee either continued detention for another year, release (parole), or transfer.44 Those recommended for parole are asked to sign an agreement not to associate with al Qaeda or the Taliban, or "engage in, assist, or conspire" with terrorists or terrorism or combat U.S. or allied forces.45 A DoD memo from July 2004 regarding the release of 25 Guantánamo detainees states, "all enemy combatants must sign a conditional release agreement in which they agree not to reengage in armed conflict with the United States."46 This practice does not seem always to be enforced by the releasing U.S. authorities, however, and some who refused to sign were nevertheless released.47

What is more, the language in the parole agreement used by the DoD does not require the detainee to forfeit anything if he is recaptured. He is no worse off for having violated his promise, and will simply end up back in Guantánamo (or another facility) as before. This is hardly a disincentive for re-engaging in hostilities against U.S. or coalition forces.48

If the United States plans to continue its current practice of "paroling" detainees on terms of an oath, it should follow the letter and spirit of Article 21 of the Third Geneva Convention. The parole documents should have teeth. "The specifications of the parole can be whatever is necessary to accomplish the purpose of excluding the paroled detainee from having any involvement in the conflict," suggests a recent law review article.49 Given the fact that these detainees are not entitled to lawful combatant status in the first place, making clear that any subsequent detention would be less accommodating than the one they are in the process of leaving seems rational and reasonable. Equally important, it also reinforces the intrinsic value of the parole regime per se for the future. "A society would fail in this duty if it simply chose not to hold POWs accountable for future acts and then detained them as unaccountable agents, when it could hold them accountable and release them," writes Alec D. Walen on the rationality of paroling Guantánamo detainees.50 Holding parolees to their oaths both gives those who wish to leave the fight a plausible reason to do so, and provides the state to which the oath was sworn grounds for re-arrest without waiting for a violent act to occur, if there is evidence the parolee has returned to the fight.51

Since these fighters already violated the laws of war by not comporting to the legal criteria of combatants, their compliance "with a grant of parole relies on personal honor to a large degree."52 The concept of parole exists within shari'a laws of war, but some released prisoners will actively deceive their captors in order to gain release. The Danish Guantánamo detainee Slimane Hadj Abderrahmane openly mocked the document he was required to sign on his conditional release: "They can use it [the pledge] as toilet paper over there in the United States."53 The Danish government was forced to seize his passport when he attempted to travel to Chechnya to resume jihad.

Perhaps the United States should reexamine General Winfield Scott's precedent during the Mexican-American War (1846–1848) of emphasizing religious authority in the parole process. Future salafists to be released from Guantánamo Bay could be made to take a detailed oath "not to reengage" from an Islamic imam in order to help impart the gravity of the act they are  about to accept. This imam should explicitly instruct the prisoner on the renowned 13th century theologian Ahmed Ibn Taymiyyah's fatwas, or religious edicts, governing oaths.54 In his collection of fatwas, Ibn Taymiyyah states that all conditions agreed to in any contract between Muslim parties (so long as that particular condition does not violate a clear obligation of faith) is religiously binding. A condition of release should be a firm understanding that if a parolee is ever caught in the commission of hostile acts against the United States or its allies, the recaptured offender will be subject to a tribunal according to military law and the international law of armed conflict. While skeptical that an oath administered by a Muslim cleric would make much of a difference with some detainees, one staff judge advocate felt the administration of the oath by an imam was "one of the most interesting ideas I've heard, particularly because it reflects the reality that the states accepting parolees have governments which are intertwined with Islam."55

On this topic, documents recovered at Osama bin Laden's home after he was killed in 2011 reveal an increasingly legalistic interpretation from bin Laden on oath-breaking under shari'a. Faisal Shahzad, a naturalized U.S. citizen from Pakistan who tried to detonate a car bomb in New York's Times Square in May 2010, drew a surprising rebuke from bin Ladin. According to one analyst, "it was not the prospect of civilian deaths that upset Bin Laden, but rather the fact that Shahzad had planned the act after swearing a loyalty oath to the United States as a newly naturalized citizen."56

Bin Laden wrote:

You have perhaps followed the media trial of brother Faisal Shahzad, may God release him, during which the brother was asked to explain his attack [against the United States] in view of having taken an oath [not to harm it] when he was awarded his American citizenship. He responded that he lied … [The lie] amounts to betrayal (ghadr) and does not fall under permissible lying to the enemy [during times of war] … [We must therefore act swiftly] to remove the suspicion that jihadis violate their oath and engage in ghadr.57

Categorizing a released Guantánamo detainee who has signed an agreement not to re-engage in hostilities as "paroled" is the most accurate choice of label, and it should be used to describe those who end up reengaging coalition forces. All detainees to be released should be made to sign a nonreengagement oath, or they should not be released. Continuing to utilize the term "recidivist" to identify those who reengage in hostile activities against the United States and her allies only perpetuates a false concept of who they are and the gravity of their actions. The Obama administration already refers to the ARB as a "parole board." It is high time this designation was made official, and those who are released from Guantánamo called parolees.Released prisoners who reengage against the United States or our allies must be identified as the parole violators they are, and judged according to the laws of war if recaptured. This suggestion offers an alternate method of conceptualizing the case of the Guantánamo detainees. It would make sense to start now, with the 171 Guantánamo prisoners who remain in custody.

About the Author(s): Erich Wagner is a Lieutenant Colonel in the U.S. Marine Corps Reserve currently assigned to AFRICOM. He has served in Panama, Croatia, Australia, Argentina, Korea, Japan, Curacao, and Iraq. Recently, Erich served as a Congressional Liaison for the Marine Corps to Congress. He has published articles on military history and counterinsurgencies in The Marine Corps University Journal, The Journal for the Anglo-Zulu War Historical Society, The Joint Center for Operational Analysis, and Armchair General.


NOTES:

1. (London: Faber and Faber, 1944), 26.

2. Mark Denbeaux, et al., "Revisionist Recidivism: An Analysis of the Government's Representations of Alleged Recidivism of the Guantánamo Detainees," June 5, 2009: http://law.shu.edu/ProgramsCenters/PublicIntGovServ/CSJ/upload/GTMO_Final_Final_Recidivist_6-5-09-3.pdf

3. The law of war (also referred to as the Law of Armed Conflict) consists of a combination of customary and conventional international laws and is grounded in Western interpretations of the concepts of justness, necessity, proportionality, and chivalry. Its current version, codified in the Geneva Conventions of 1949, is a uniquely Western construct that has evolved over time in response to changing environments and watershed geo-political events.

4. See Joseph P. Bialke, "Al-Qaeda & Taliban Unlawful Combatant Detainees, Unlawful Belligerency and the International Laws Of Armed Conflict," Air Force Law Review, vol. 55 (Spring 2004): 4, and note 5.

5. "Leaving Guantanamo: Policies, Pressures, and Detainees Returning to the Fight," Subcommittee on Oversight and Investigations, House Armed Services Committee Print 112-4, January 2012: http://www.hsdl.org/?view&did=699744

6. Reginald Bosworth Smith, Rome and Carthage: The Punic Wars, (New York: Charles Scribner's Sons, 1896), 71. See also Howard S. Levie, Prisoners of War in International Armed Conflict (Newport: Naval War College Press, 1977), 59, available through: http://www.lexis.com

7. Henry Campbell Black, Black's Law Dictionary, 6th edition (St. Paul: West Publishing Co., 1990), 1116.

8. "Training and Education Measures Necessary to Support the Code of Conduct," U.S. Department of Defense Directive 1300.7, encl. 2, para. B(3)(a)(5), December 23, 1988.

9. William Bradford, "Barbarians at the Gates: A Post- September 11th Proposal to Rationalize the Laws of War," Mississippi Law Journal, Winter 2004: 43–44.

10. Commentary on [Third Geneva] Convention relative to the Treatment of Prisoners of War, Geneva, August 12, 1949, paragraph 3, 181.

11. Manual for Courts-Martial, 1951, para. 12 7 (c).

12. Commentary on [Third Geneva] Convention, paragraph 2, 178.

13. Ibid.

14. Ibid.

15. Ibid., paragraph 3, 181.

16. Bradford, "Barbarians at the Gates," 44.

17. George Lewis, John Mewha, Martin Miller, and John Beeler, History of Prisoner of War Utilization by the United States Army, 1776-1945 (Washington D.C.: Department of the Army, 1955), 47.

18. See, for example, "[Draft] Memorandum from John Yoo, Deputy Assistant Att'y Gen., for William J. Haynes II, Gen. Counsel, Dep't of Def. (Jan. 9, 2002):" http://www.slate.com/features/whatistorture/pdfs/020109.pdf. See also Tom Farer, Confronting Global Terrorism And American Neo-Conservatism (Oxford: Oxford University Press, 2008), 90–95; and Eric Jensen, "The Laws of War: Past, Present, and Future: Combatant Status: It Is Time for Intermediate Levels of Recognition for Partial Compliance," Virginia Journal of International Law, vol. 46 (Fall 2005): 1–45.

19. Al Qaeda, hostes humani generis, are not soldiers of any state; al Qaeda leaders and followers do not pledge allegiance to any state, nor do they serve under any national flag. See Bialke, "Al-Qaeda & Taliban," 12.

20. It is interesting to note that the British and the French did, in times past, occasionally strip their own officers who had violated parole of their commissions, or even send them back to the enemy. See Gary D. Brown, "Prisoner Of War Parole: Ancient Concept, Modern Utility," Military Law Review, vol. 156 (1998), 211; and Geoffrey Best, Humanity in Warfare (New York: Columbia University Press, 1980), 81.

21. Kenneth Anderson, "Book Review: Prisoners in War," Lawfareblog.com, November 28, 2011: http://www.lawfareblog.com/2011/11/prisoners-in-war/

22. Friederich Kratochwil, "Norms and Values: Rethinking the Domestic Analogy," Ethics in International Affairs, vol. 1 (1987): 135, 139.

23. Scott R. Morris, "The Laws of War: Rules by Warriors for Warriors," The Army Lawyer, December 1997: http://www.au.af.mil/au/awc/awcgate/law/rules_by_warriors.pdf, citing R.C. Algase, "Protection of Civilian Lives in Warfare: A Comparison Between Islamic Law and Modern International Law Concerning the Conduct of Hostilities," Military Law and Law of War Review (1977), 246.

24. Majid Khadduri, "Islam and the Modern Law of Nations," American Journal of International Law, vol. 50 (1956): 358–359.

25. Ray Murphy and Mohamed M. El Zeidy, "Prisoners of War: A Comparative Study of the Principles of International Humanitarian Law and the Islamic Law of War," International Criminal Law Review, vol. 9, no. 4 (October 2009): 639 Said El-Dakkak, "International Humanitarian Law Lies Between the Islamic Concept and Positive International Law," International Review of the Red Cross, vol. 101 (1990):103–104; as quoted in Murphy and El Zeidy, "Prisoners of War," 640.

27. El-Dakkak, "International Humanitarian Law," 103-104.

28. Murphy and El Zeidy, "Prisoners of War," 640.

29. The Hadith is the second most important book in Islam. While it has much less to say about the laws of war, it rarely if ever contradicts the Qur'an. T.P. Schwartz-Barcott, War, Terror & Peace in the Qur'an and in Islam: Insights for Military & Government Leaders (Carlisle, Penn.: Army War College Foundation Press, 2004), 86.

30. Ibn Rushd, The Distinguished Jurist's Primer, vol. I (Garnet: Lebanon, 1994), 10.1.3.

31. Majid Khadduri, War and Peace in the Law of Islam, (Baltimore: Johns Hopkins University Press, 1955), 129.

32. Muhammad Hamidullah, Muslim Conduct of State, 6th edition (Lahor: Ashraf, 1973), 444–445.

33. One was Abu Azzah, released after the Battle of Badr (624 A.D.); see Benedetto Conforti, The Italian Yearbook of International Law 2004, volume 14 (The Netherlands: Martinus Nijhoff), 68. The other was Ibn Gharra, released after the Battle of Uhud (625 A.D.); see Hisham M. Ramadan, Understanding Islamic Law: From Classical to Contemporary (Lanham, Maryland: AltaMira, 2006), 85.

34. "The Liberation of Mazar-e Sharif: 5th SF Group Conducts UW in Afghanistan," Special Warfare, vol. 15, no. 2 (June 2002): 38.

35. Murphy and El Zeidy, "Prisoners of War," 646.

36. Muhammad Abdel Haleem, Understanding The Qur'an: Themes and Style (London: I.B. Taurus, 1999), 69.

37. House Armed Services Committee, "Leaving Guantanamo:" 38.

38. "Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba," Office of the Director of National Intelligence, Washington, D.C., December 2010.

39. Ibid.

40. New York Times Guantánamo Docket: http://projects.nytimes.com/guantanamo/

41. Catherine Herridge, "Gitmo Repeat Offender Rate Continues to Rise," FoxNews.com, December 8, 2010.

42. Kyndra Miller Rotunda, Honor Bound: Inside the Guantanamo Trials (Durham: Caroline Academic Press, 2008), 138-139.

43. House Armed Services Committee, "Leaving Guantanamo:" 38.

44. "Order; Subject: Administrative Review Procedures for Enemy Combatants in the Control of the Department of Defense at Guantanamo Bay Naval Base Cuba," Office of the Deputy Secretary of Defense, Washington, D.C., May 11, 2004: http://www.defense.gov/news/May2004/d20040518gtmoreview.pdf

45. House Armed Services Committee, "Leaving Guantanamo:" 21-22. Similarly, a 2008 human rights report from the University of California, Berkeley, reports that within a day of departure, each detainee was told to sign a "release agreement" stating that "[the individual] was detained as an enemy combatant during such armed conflict;" he would "not in any way affiliate himself with al Qaeda or its Taliban supporters;" and that if said individual "violated any of these conditions he agreed that he ‘may again be detained.'" The agreement stated that failure to fulfill its promises could result in immediate detention "consistent with the law of armed conflict," but made no mention of liability to punitive sanctions. See Associated Press v. United States Department of Defense, August 22, 2006: http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2005cv05468/269124/28/1.html; and Laurel Fletcher, et al., Guantánamo and Its Aftermath, (Berkeley: Human Rights Center, 2008), 59–60.

46. Fletcher, et al., Guantánamo and Its Aftermath.

47. Ibid., 59–60.

48. For examples of these parole documents, see ibid., 60; Justicia Dockets and Filings: http://docs.justia.com/ cases/federal/district-courts/new-york/nysdce/1:20 05cv05468/269124/28/; and The Full Wiki: http://www. thefullwiki.org/Guantánamo_Release_Agreement

49. Chris Jenks and Eric Jensen, "Indefinite Detention Under the Laws of War," Stanford Law & Policy Review, vol. 22 (2011): 152: http://ssrn.com/abstract=1729221

50. Alec D. Walen, "Crossing a Moral Line: Long-Term Preventive Detention in the War on Terror," Philosophy and Public Policy Quarterly, vol. 3/4 (October 15, 2008): 15-21: http://ssrn.com/abstract=1489468

51. Max Paul Friedman, "A Fair, Safe Way to Close Guantánamo," Christian Science Monitor, September 27, 2006, 9.

52. Jenks and Jensen, "Indefinite Detention," 14.

53. "Danish Detainee ‘To Join Rebels'," BBC World News, September 30, 2004; Lloyd de Vries, "7 Ex- Prisoners Allegedly Violated Pledge to Renounce Violence," Associated Press, October 17, 2004.

54. "If Ibn Taymiyyah's name is mentioned, there is no need to seek further evidence," is one criticism of Salafist thinking. See Hassan Hassan, "A Religious Basis for Violence Misreads Original Principles," The National, April 9, 2012.

55. Personal interview with Colonel James G. Bitzes, USAF, March 26, 2012. Hypothetically, it could also have a motivating effect on the family members who accepted formal responsibility for ensuring that former detainees would not participate in antistate activities. See Anjum Herald Gill, "17 Ex-Guantanamo Prisoners Released," Punjab Daily Times, June 28, 2005.

56. Joby Warrick , "Bin Laden's Last Stand: In Final Months, Terrorist Leader Worried about His Legacy," The Washington Post, May 1, 2012.

57. This document is catalogued as SOCOM-2012- 0000015, 7. Note that translations vary to some degree. One version is available at: http://www.scribd.com/doc/92229022/SOCOM-2012-0000015-Trans.

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