forthcoming scholarship

June 27, 2009

Designing Detention: A Model Law for Terrorist Incapacitation

Forthcoming in the edited volume Legislating the War on Terror: An Agenda for Reform (summer 2009) (Brookings Institution) (Benjamin Wittes, ed.)

Benjamin Wittes, Senior Fellow, Brookings (Governance Studies)
Colleen A. Peppard

A consensus is beginning to emerge in the public and political spheres concerning the non-criminal detention of terrorist suspects. Over the past several years, non-criminal detention of Al Qaeda and Taliban captives at Guantánamo Bay, Cuba has sharply divided the American polity. Since the change in administration, however, it has become increasingly clear that the United States—even under a Democratic administration and with substantial Democratic majorities in both houses of Congress—is not going to abandon long-term detention of terror suspects and revert to a pure law enforcement model for incapacitating them, and it is not going to deal with the population of Guantánamo on the basis of freeing everyone whom it cannot prosecute. While the developing consensus still has many dissenters, the real question now is not whether America will have some detention system, but what sort of detention system, designed by whom, and using what rules.

In his recent speech at the National Archives on national security strategy and law, President Obama placed himself solidly within this emerging body of thought. He recognized that protecting our national security may require a non-criminal detention system for terrorists who cannot be tried but are too dangerous to release. And he made clear that this system needs to be fair and rigorous, supervised by the federal courts and created by an act of Congress. The president called for a system that has “clear, defensible, and lawful standards,” “fair procedures so that we don’t make mistakes,” and “a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.”[i]

This paper, and the model legislative text we have attached as an appendix, is an effort to imagine such a regime at the granular level of actual legislative language. Much commentary and speculation has focused on the form that this new regime should take, rather than on the details of the many questions a detention regime will need to address. In the wake of the Supreme Court’s decision in Boumediene v. Bush,[ii] it is inevitable that federal judges will ultimately oversee any such detention system. Aside from this one general feature, however, the framework for the new system remains wide open in any number of respects.

The necessity of a preventative detention apparatus is the result of the unique nature of America’s conflict with transnational terrorist organizations and the limits of existing laws, both international and domestic, in responding to current threats. Defense Secretary Robert Gates recently testified that, after Guantánamo closes, there will remain a residual group of 50 to 100 Guantánamo detainees who cannot be tried yet are too dangerous to release.[iii] Yet the structural issues that generate this group actually implicate a larger population than those currently held at Guantánamo. Any new detention regime will need to address not only Guantánamo detainees but also similar detainees held elsewhere and other terrorists captured in the future outside of zones of active military operations.

The debate over what to do both with these residual Guantánamo detainees and with future captives in global counterterrorism operations has largely focused on which legal regime should serve as the reference guide. Commentators from across the spectrum have debated the merits of the law-of-war versus the criminal-law paradigms. But except in the broadest terms, this debate does little to advance the discussion on how exactly we should detain suspected terrorists—or, indeed, how we should define the category of suspected terrorists we mean to detain.

Meanwhile, advocates of a non-criminal detention scheme have tended to focus on the possibility of creating a national security court. Proponents argue that a national security court could bridge the divide between the law-of-war and criminal-justice paradigms, using elements of both to create a new system responsive to modern security threats. A national security court would be staffed by federal judges, buttressing the legitimacy of any detention regime. It could address issues such as the protection of classified information and the consideration of evidence which federal courts would normally exclude from criminal proceedings. Suggested national security court models have ranged from a stand-alone institution comparable to the Foreign Intelligence Surveillance Court to simply giving exclusive jurisdiction over detention cases to the federal district court in the District of Columbia. National security court advocates have suggested their use to oversee wartime detentions, to conduct trials for suspected terrorists, or both.

Yet national security court critics have argued that such proposals are significantly underdeveloped in both form and function. As one opponent writes, these proposals are “dangerously myopic proxies for larger debates that must be resolved first.”[iv] And the critics have a point. Many proposals for national security courts offer an institutional solution (creating a new court) for what is really a substantive set of problems: We, as a society, have not yet decided on the rules that will govern terrorist detentions. We have not yet decided the substantive standards, procedural elements, or rights of the accused within the processes in question. These issues are far more important than what building the adjudication will take place in or what to call the institution that will do the adjudication.

Given that there will be a residual group of Guantánamo detainees and that the president intends, as he put it, to “work with Congress to develop an appropriate legal regime” to govern their detentions, now is the time to answer these important questions. Jack Goldsmith, in a paper earlier this year, identified several key questions any detention legislation will have to address:[v]

  • Who falls within the definition of the detainable class?
  • What are the evidentiary and procedural rules?
  • How much of the proceedings should take place in public?
  • How often should detention decisions be reviewed?
  • What rules should govern access to classified information?
  • Should the court be a stand-alone institution?
  • Should the court make first-order detention decisions or review detention decisions made by the military?

In this paper, we do not intend to argue for a preventative detention regime but, rather, to design one—to pose one set of answers to these questions with sufficient precision to produce actual legislative language. For those unconvinced of the necessity of such a law, there is a voluminous literature—including several works by one of the present authors.[vi] Our aim here is to elaborate on this previous work, on the work of other writers and scholars, and on subsequent legal developments in both U.S. courts and international jurisprudence in an effort to address Goldsmith’s questions head on. That is, we aim to begin the process of translating the emerging consensus that some detention apparatus is necessary into actionable legislation, to bring the debate down from a high-altitude argument over first principles to a more practically useful discussion of what a coherent approach to non-criminal terrorism detentions ought to look like. The attached model detention law is a further effort to translate the choices we put forward into actual legislative language, which we offer as a kind of discussion draft as Congress begins to contemplate President Obama’s request.

In addressing the design elements of a detention law, rather than arguing for one, we necessarily take as given several assumptions that many readers may still regard as premature. First, we assume that the laws of war do not offer an adequate legal framework for the detention of terrorist suspects. The detention system they envision relies on numerous premises which do not hold true for conflicts with global terrorist organizations—for example, that it is fairly simple to distinguish those who are participating in hostilities from those who are not, that the nationality of the participants should determine their rights, and that conflicts will end in an identifiable manner. Conflicts with terrorist organizations buck these premises, and therefore render the framework provided by the Geneva Conventions incomplete, and arguably ill-suited, for a long-term conflict with Al Qaeda.

Second, we assume that reliance solely on domestic criminal law to incapacitate transnational terrorists is untenable. The rules of procedure and evidence for criminal trials create too high a bar to detain terrorists arrested in the far corners of the earth under circumstances less than favorable for the collection of evidence. People against whom evidence may not come close to proving criminal culpability may still pose an unacceptable danger as a result of frankly-acknowledged allegiance to enemy organizations, evidence that would be inadmissible in criminal proceedings, or evidence that cumulatively falls short of proof beyond a reasonable doubt of criminal conduct. Efforts to shoehorn terrorism cases into the criminal justice system may also have serious negative repercussions for the conduct of domestic criminal trials more generally.[vii] We assume, in short, that the appropriate detention regime for counterterrorism purposes will draw on both the criminal-law and law-of-war traditions but is ultimately very much its own animal.

We proceed in five parts. In the first section, we lay out a general overview of the model detention statute we envision, how it would work mechanically and what the legal process under its terms would look like. In the second section, we discuss the model law’s definition of the class of people subject to detention. We next turn to the details of the procedures the model law would employ to adjudicate terrorist detentions. In the penultimate section, we discuss briefly the various accountability mechanisms we have sought to build into the model law. Finally, we conclude with a set of observations concerning how the model law would help insulate traditional wartime detentions from probing post-Boumediene judicial review and preserve a zone of executive discretion for such detentions.

“The Usefulness of a Negative Example: What We Can Learn About Evidence Rules from the Government’s Most Recent Efforts to Construct a Military Commissions Process”

William Mitchell Law Review, Vol. 35, No. 4, 2009

VICTOR HANSEN, New England Law
Email: vhansen@faculty.nesl.edu

The military commissions give us an opportunity to explore and reflect on whether the procedures to try alleged foreign terrorists or the procedures for some future military commission should follow the approach of the Bush administration. Looking back on the evidentiary scheme of the military commissions also gives us an opportunity to reflect on the application of the rules of evidence in military courts-martial and other criminal prosecutions.

To explore these issues, this paper will discuss the Uniform Code of Military Justice (UCMJ) and the Military Rules of Evidence. Why were these provisions created and how were they to be applied within the full spectrum of military operations? The paper will then compare the Military Rules of Evidence generally to the various approaches offered up in the military commissions system. What were the stated reasons for any changes and why did the President ultimately settle on the approach reflected in the Manual for Military Commissions? Are these reasons credible and are there other, perhaps unstated reasons for the rule changes? To the extent that we can determine the reasons for why the evidence rules were changed, can similar rationales apply to other criminal trials in the military context? The paper also asks if we are at an evidence cross-road. Are we at a point where we need to reexamine the way evidence is treated in military criminal cases tried under the UCMJ? For example, should certain combat exceptions be written in to the military rules of evidence? On the other hand, are the recent efforts to depart from the established rules of evidence in military commissions nothing more then an attempt to give the government an advantage over a class of defendants who it deems is not worthy of enjoying full protections of a fair trial?

Terror, the Rule of Law, and Institutional Design

Governance (July 2009) Jerry Mashaw, Yale Law School

The journal Governance is offering a free download of an article by Professor Jerry Mashaw of Yale Law School in its current issue: “Terror, the Rule of Law, and Institutional Design” (22.3, July 2009).  Mashaw says that the post-9/11 struggle is a “story of administrative arrogance, judicial hesitancy, and congressional failure.”  But he is skeptical that a change in administration will eliminate the long-term threat to American legal culture that is posed by the war against terror.  Mashaw doubts that interbranch competition, or reforms within the executive branch, can assure respect for the rule of the law in times of national emergency.  The best solution, he says, might be the previously unthinkable notion of “two constitutions” — one for normalcy, and one for emergencies — so that “actions taken and legally sanctioned in extraordinary times [do] not bleed into and shape the normal legal culture.”  Download here: http://www.governancejournal.net.

“The President, Congress and the Security Council: Counterterrorism and the Use of Force Through the Internationalist Lens”

Willamette Law Review, Vol. 45, p. 417, 2009
University of Missouri School of Law Legal Studies Research Paper No. 2009-08

MARGARET E. MCGUINNESS, University of Missouri School of Law
Email: mcguinnessm@missouri.edu

This contribution to the 2008 Willamette Law School symposium, ?Presidential Power in the 21st Century,? addresses the question of presidential powers to carry counterterrorism policies – in particular the use of force against terrorist groups – through an internationalist lens. Viewed through that lens, domestic constitutional understandings of appropriate democratic constraints on presidential counterterrorism powers can be seen as interacting with international institutional understandings of democratic accountability for the use of force. This intersystemic process can be engaged to address ?democracy deficits? at both the international and domestic level and to promote reform at international organizations.

Part I of the article explains that U.S. counterterrorism policy post-September 11, 2001 has been more multilateral in its orientation than is generally assumed, and that counterterrorism policy going forward is likely to rely more, rather than less, on multilateral institutions. Part II examines the question of U.S. constitutional practice where the war powers have been exercised through international institutions. Part III argues that international institutional legitimacy should be more explicitly invoked as a rationale for closer consultation with and participation by Congress in counterterrorism use of force decisions. A more explicit acknowledgment of the dynamic, dialectical interaction between domestic democratic accountability for a state?s participation in U.N. counterterrorism programs and the international and domestic accountability for the action taken by the U.N. offers several advantages. Open embrace of more robust congressional participation in U.S./U.N. counterterrorism practice can contribute to overcoming the democracy gaps at home and within the U.N. by: (1) strengthening democratic accountability domestically; (2) modeling ?best practices? for nascent democracies and regimes in transition; (3) promoting procedural legitimacy within the Council; (4) promoting legitimacy of emerging international legal norms concerning the use of force against terrorists and terrorist groups; (5) harmonizing U.N. counterterrorism programs with international human rights protections; and (6) clarifying the role of judicial review (at the domestic and international level) of Security Council actions.

“Counter-Terrorism Law and Inchoate Offences”

GABRIEL HALLEVY, Ono Academic College, Faculty of Law
Email: hallevy@ono.ac.il

The modern definitions of the inchoate offences are well known in the criminal law since the Middle Ages both in European-Continent legal systems and in the English Common Law. They were mostly developed by the case-laws of the Star Chamber Court, which was abolished in 1640. The inchoate offences include three basic offences: Attempt, Conspiracy and Solicitation, but different legal systems defined some other offences as inchoate, such as the Aider and Abettor in Britain after the full validation of the Serious Crimes Act, 2007, c.27, s.44. In this paper it is argued, that there is a very intensive interaction between the fight against terrorism and inchoate offences. The fight against terrorism effects the definition of inchoate offences, and inchoate offences are used as a major instrument of criminal law in the legal fight against terrorism.

“The Dilemma of Direct Participation in Hostilities”

ERIC CHRISTENSEN, affiliation not provided to SSRN
Email: eric.christensen@gmail.com

A universal and comprehensive definition of direct participation in hostilities (DPH) does not exist. Furthermore, modern warfare?s tendency to blur the distinction between combatant and civilian necessitates some revision of DPH. However, States have incentives to pursue narrow or broad interpretations of DPH, or even both. These contradictory strategies create a dilemma for policymakers who seek to revise the concept of DPH. Any revision is likely to put some group of individuals at risk; there is not a simple answer to the question of how best to revise DPH. Instead, a radical revision of DPH is needed. This report will briefly examine the law of war and then explore the relative merits of the U.S., Israeli, and the International Committee of the Red Cross?s interpretations of DPH. Lastly, this report will recommend potential solutions to the dilemma of DPH interpretation, most notably a membership-based approach.


ICRC releases its Direct Participation in Hostilities study

June 2, 2009

* Nils Melzer (Legal Adviser, International Committee of the Red Cross), “Clarifying the Notion of Direct Participation in Hostilities” (June 1, 2009)

The ICRC has released its long-anticipated report on the meaning of “direct participation in hostilities” (DPH).  A link to the report, as well as links to a corresponding “Q&A” document and to the reports generated by a series of preliminary meetings on this topic, are posted here.

I will circulate a summary of the substance of the report tomorrow (I hope). In the meantime, I will simply note what the ICRC has to say about the sponsorship and nature of the report in its opening pages:

“First, the Interpretive Guidance is an expression of solely the ICRC’s views. While international humanitarian law relating to the notion of direct participation in hostilities was examined over several years with a group of eminent legal experts, to whom the ICRC owes a huge debt of gratitude, the positions enunciated are the ICRC’s alone. Second, while reflecting the ICRC’s views, the Interpretive Guidance is not and cannot be a text of a legally binding nature. Only State agreements (treaties) or State practice followed out of a sense of legal obligation on a certain issue (custom) can produce binding law.” (p. 6)


forthcoming scholarship (and happy Memorial Day)

May 25, 2009

“The ‘Bush Doctrine’: Can Preventive War Be Justified?”

Harvard Journal of Law and Public Policy, Vol. 32, 2009
U of St. Thomas Legal Studies Research Paper No. 09-08

ROBERT J. DELAHUNTY, University of St. Thomas School of Law (Minnesota)

Email: RJDELAHUNTY@stthomas.edu
JOHN YOO, University of California at Berkeley School of Law
Email: YOO@LAW.BERKELEY.EDU

We continue to live in a dangerous world. We are exposed to the risk that hostile states or terrorist groups with global reach might attack our civilian population or those of our allies using weapons of mass destruction. In such circumstances, it might seem natural for U.S. policymakers to consider preventive war as a possible tool for countering such threats. Yet in the current climate of opinion, such thinking would be controversial – in large part, no doubt, because of the continuing disputes over the normative, strategic, and legal wisdom of what has been called the ?Bush Doctrine.?

Preventive war, in appropriate circumstances, can be justified for reasons that are closely analogous to those usually offered to justify humanitarian intervention. The key difference is that in preventive war the intervenors protect their own populations, whereas in humanitarian intervention the intervenors protect the target state?s population. Although critics of preventive war tend to be sympathetic to humanitarian intervention, the underlying logic for both uses of force is substantially the same.

In this Essay, we first explain what we mean by ?preventive? war, and how it is distinguishable from ?preemptive? war. Then we briefly consider whether, as critics of the Bush Doctrine allege, the War in Iraq was virtually unprecedented in the Nation?s history or was, instead, one of several major conflicts fought by the United States that could fairly be described as preventive wars. Finally, we shall recommend certain normative guidelines and criteria for policymakers to follow in deciding whether to initiate a ?preventive? war.

“Defining Armed Conflict”

Journal of Conflict Security Law, Vol. 13, pp. 393-400, Winter 2008
Notre Dame Legal Studies Paper No. 09-09

MARY ELLEN O’CONNELL, Notre Dame Law School
Email: MaryEllenOConnell@nd.edu

Within hours of the 9/11 attacks in the United States, President George W. Bush declared ?a global war on terrorism?. Experts around the world assumed this declaration was a rallying cry, a rhetorical device to galvanize the nation to serious action. By November 2001, however, the evidence began to mount that the President was ordering actions that could only be lawful in a de jure armed conflict: targeting to kill without warning, indefinite detention without trial, and search and seizure on the high seas without consent. It was difficult to criticize these actions on the basis of international law, however, given that international law contained no widely accepted definition of armed conflict. By May 2005, the International Law Association determined that there was a pressing need for a report on the meaning of armed conflict supported by international law. The Use of Force Committee presented its Initial Report on the Meaning of Armed Conflict in International Law at the Rio de Janeiro biennial meeting of the ILA. The Report concludes that all armed conflicts have as minimum two necessary characteristics: 1.) the presence of organized groups 2.) engaged in intense armed fighting. The Report indicates that while the United States has been engaged in an armed conflict in Afghanistan and in Iraq since 9/11, it has not been engaged in a global armed conflict. The Initial Report will be expanded for presentation in final form in 2010 at The Hague biennial meeting.

“Australian Terror Laws and Academic Freedom”

FREE SPEECH IN FEARFUL TIMES: AFTER 9/11 IN CANADA, THE U.S., AUSTRALIA & EUROPE, Turk J. & Mason A., eds., pp. 234-244, Canada: James Lorimer & Company Limited
U of Melbourne Legal Studies Research Paper No. 391

JOO-CHEONG THAM, University of Melbourne
Email: j.tham@unimelb.edu.au

In Australia, the domestic ?War on Terror? has been waged through a multitude of laws with at least 26 separate pieces of anti-terrorism laws passed since the September 11 attacks.1 More disturbing than the pace of legislative enactment is the character of the laws passed. These laws mean that Australian security and police agencies now have the power to detain without trial. Broad discretion has also been conferred upon the government to ban so-called ?terrorist organisations?.

These laws also cloak the operations of police and security organisations with greater secrecy, criminalise speech and heighten the risk of political and religious persecution. It is these features of the ?War on Terror? that particularly threaten academic freedom in Australia.

“Warrantless Wiretapping, FISA Reform, and the Lessons of Public Liberty: A Comment on Holmes’ Jorde Lecture”

California Law Review, Vol. 97, No. 407, 2009

PAUL M. SCHWARTZ, UC Berkeley School of Law
Email: pschwartz@law.berkeley.edu

This Essay responds to Stephen Holmes? Jorde Lecture, which was delivered at Boalt Hall on November 5, 2007. It builds on his model of ?public liberty? by discussing how private liberty, and information privacy in particular, is a precondition for public liberty. For Holmes, private liberty is largely a negative right – a right to be free from governmental interference. In contrast, this Essay considers privacy to be an element of public rights. Participation in a democracy requires individuals to have an underlying capacity for self-determination, which requires some personal privacy.

This Essay analyzes a number of Holmesian concepts through the lens of the recent amendment of the Foreign Intelligence Surveillance Act (FISA). In Part I, I describe the background of FISA, the National Security Agency?s (NSA) warrantless surveillance program in violation of this statute, and the amendments to this law in the Protect America Act of 2007, a short term statutory ?fix? that has expired, and the FISA Amendments Act of 2008, which remains in effect.

In Part II, I turn to an analysis of the challenges to private and public liberty posed by the NSA?s surveillance. I organize this Part around three topics: (1) past wisdom as codified in law; (2) the impact of secrecy on government behavior; and (3) institutional lessons. As we shall see, a Holmesian search for the wisdom previously collected in law proves quite difficult. FISA regulated some aspects of intelligence gathering and left the intelligence community entirely free to engage in others. Over time, moreover, technological innovations and altered national security concerns transformed the implications of the past policy landscape. As a result, the toughest questions, which concern surveillance of foreign-to-domestic communications, do not receive an easy answer from the past.

Regarding the impact of secrecy on government behavior, the analysis is, at least initially, more straightforward. As Holmes discusses, the Bush administration was adept at keeping secrets not only from the public and other branches of government, but from itself. It is also striking how little Congress knew about NSA activities while amending FISA. The larger lessons, however, prove yet more complicated: strong structural and political factors are likely to limit the involvement of Congress and courts in this area. This Essay concludes by confronting these institutional lessons and evaluating elements of a response that would improve the government?s performance by crafting new informational and deliberative structures for it.

“The Dilemma of Direct Participation in Hostilities”

ERIC CHRISTENSEN, affiliation not provided to SSRN
Email: eric.christensen@gmail.com

A universal and comprehensive definition of direct participation in hostilities (DPH) does not exist. Furthermore, modern warfare?s tendency to blur the distinction between combatant and civilian necessitates some revision of DPH. However, States have incentives to pursue narrow or broad interpretations of DPH, or even both. These contradictory strategies create a dilemma for policymakers who seek to revise the concept of DPH. Any revision is likely to put some group of individuals at risk; there is not a simple answer to the question of how best to revise DPH. Instead, a radical revision of DPH is needed. This report will briefly examine the law of war and then explore the relative merits of the U.S., Israeli, and the International Committee of the Red Cross?s interpretations of DPH. Lastly, this report will recommend potential solutions to the dilemma of DPH interpretation, most notably a membership-based approach.

“Towards Military Rule?: A Critique of Executive Discretion to Use the Military in Domestic Emergencies”

Marquette Law Review, Vol. 91, No. 3, 2008
Vermont Law School Research Paper No. 09-01

JACKIE GARDINA, Vermont Law School
Email: jackie_gardina@ca1.uscourts.gov

Following 9/11 and in the aftermath of Hurricane Katrina, the Bush Administration called for an increased role for the Department of Defense and the federal armed forces in responding to domestic emergencies. Through a variety of statutory measures, Congress answered the President’s request for enhanced authority, increasing the Executive Branch’s already enormous discretionary power to deploy the federal armed forces domestically. But some members of Congress have begun to question the propriety of such authority housed almost exclusively in the Executive Branch. By increasing the military’s presence in the domestic sphere the federal government is obscuring the traditional lines between military and civilian roles. Even when sanctioned by civil leaders, the increased role of the armed forces in the domestic life endangers civil liberties and the democratic process.

The central purpose of this Article is to expose the erosion of the structural checks on the Executive’s power to deploy the military domestically to execute the laws and quash public disorder. It begins by briefly describing the historical bases for the founding generation’s mistrust of an executive with unbridled access to a military force. Next, it identifies the structural protections that were placed in the Constitution in response to these concerns, placing special emphasis on congressional control. In Part III, it describes the erosion of the structural checks, focusing first on the division of power between Congress and the Executive and then turning to the federalism issues. It offers a startling picture of how, over the last two plus centuries, excessive discretionary power has been delegated to the Executive Branch. Finally, Part IV offers a modest proposal that recognizes the dangers inherent in the introduction of military force into civilian society and attempts to restore the checks originally envisioned by the Founders while still providing adequate flexibility to respond to modern day exigencies.

“Justifying the Political Question in War: The Natural Source, Substance, and Scope of Political Power”

MATTHEW JORDAN COCHRAN, Campbell University School of Law
Email: matthewjordancochran@gmail.com

Attempts by plaintiffs to avoid induction into the armed forces, to enjoin the President’s military orders, and to contest war taxing and spending – each claim asserting the “unconstitutionality” of military actions then underway – have been thwarted by justiciability doctrines. The most persuasive of these doctrines, but for reasons distinct from and more compelling than its traditional justifications, is the political question doctrine.

The traditional political question doctrine rubric, as shown by its application during and following the Vietnam War, has proven misleading and largely incomplete. It becomes important to understand that social contract principles – and not doctrinal slight of hand – forbid unelected judges from answering war questions. The “political question result” should be seen as our government’s sensitivity (whether innate, learned, or bitter) to the natural boundaries within which it may operate legitimately.


Hamlily v. Obama (major opinion partially accepting and partially rejecting the revised

May 19, 2009

* Hamlily v. Obama (D.D.C. May 19, 2009) (Judge Bates recognizes a relatively limited degree of detention authority in the GTMO habeas cases)

Judge Bates, fresh from becoming the new chief of the FISA Court, today issued an important decision that partially accepts and partially rejects the Obama administration’s recently-revised definition of its military detention authority vis-à-vis the GTMO detainees.  Specifically, Judge Bates holds that detention authority includes those who are functional members of AQ, the Taliban, and co-belligerent groups, as well as those others who directly participate in hostilities.  It does not include, however, those who provide support to these groups separate and apart from membership, or those who provide support to hostile acts separate and apart from direct participation.

Below I provide the conclusion of his opinion, and then an outline of his rationale:

Conclusion:

After careful consideration, the Court is satisfied that the government’s detention authority is generally consistent with the authority conferred upon the President by the AUMF and the core law of war principles that govern non-international armed conflicts. In those instances where the government’s framework has exceeded that which is permitted by the law of war – specifically with respect to the concept of “support” — the Court rejects such bases for detention. Therefore, the Court concludes that under the AUMF the President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who are or were part of Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed (i.e., directly participated in) a belligerent act in aid of such enemy armed forces.” (p. 21)

Outline:

1. Background:

– The question presented: what is the scope of detention authority under the AUMF, as informed by the law of war? (p.1)

– The judiciary owes some degree of deference to the executive in matters relating to foreign affairs. (p.6-7) [Note that Judge Bates here cites the dueling law review articles on this topic by Eric Posner and Cass Sunstein, on one hand, and Derek Jinks and Neal Katyal on the other.  And they say judges don’t read law review articles anymore…]

2. Summary of the holding:

The court “rejects the concept of “substantial support” as an independent basis for detention. Likewise, the Court finds that “directly support[ing] hostilities” is not a proper basis for detention. In short, the Court can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of “support” as a valid ground for detention. The Court does not accept the government’s position in full, then, even given the deference accorded to the Executive in this realm, because it is ultimately the province of the courts to say “what the law is,” Marbury v.Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803), and in this context that means identifying the “permissible bounds” of the Executive’s detention authority, Hamdi, 542 U.S. at 522 n.1. Detention based on substantial or direct support of the Taliban, al Qaeda or associated forces, without more, is simply not warranted by domestic law or the law of war. With the exception of these two “support”-based elements, however, the Court will adopt the government’s proposed framework, largely for the reasons explained in Gherebi. The AUMF and the law of war do authorize the government to detain those who are “part of” the “Taliban or al Qaida forces.”  (p. 7)

3. Explanation of the holding:

a. The AUMF: The AUMF, as a matter of domestic law, grants detention authority with respect to the members of the organizations it covers. (p. 10-12)

b. Construing the AUMF in light of the laws of war: The next question is whether this grant of authority is compatible with the law of war, given the detainees argument that there are no combatants and hence no status-based detention in non-international armed conflict.  (p. 12)  The petitioners argued instead for detention being limited to those who directly participated in hostilities (DPH), and they argued that DPH should be construed narrowly (though the court noted that their own expert appeared to support a broader formulation of DPH).  (p. 12)

c. Detention authority in non-international armed conflict: The court accepted that the relationship between the US and AQ is best described as a non-international armed conflict and that there is no “combatant” status in NIAC, but nonetheless rejected the argument that this compels the conclusion that all detainees must then be categorizes as “civilians.”  (P.13)  The court noted that Common Article 3 itself refers to protections for “members of armed forces who have laid down their weapons,” and that AP II provides certain protections specifically directed toward the “civilian” population (implying the existence of non-civilians, according to the court).  (p.14)  Judge Bates then cited a pair of ICTY decisions in support of this view. (p. 14-15)  [As to customary law, interestingly, the court observes that “candidly” this is an open question.]

d. The meaning of associated forces” – the court concludes that the AUMF extends beyond AQ and the Taliban to “associated forces,” which it defined in terms of co-belligerent status.  (p.16).  The court also noted, however, that “”Associated forces” do not include terrorist organizations who merely share an abstract philosophy or even a common purpose with al Qaeda — there must be an actual association in the current conflict with al Qaeda or the Taliban.” (p. 16 n. 17)

e. Who counts as a member or part of a covered group? The court declined to offer a comprehensive test, saying there are “no settled criteria,” that the decision must be individualized, and that the analysis should be “more functional than formal.” (p. 17)  The key, following the earlier decision of Judge Walton in Gherebi, is not self-identification as a member but, instead, “whether the individual functions or participates within or under the command structure of the organization — i.e., whether he receives and executes orders or directions.” (p. 17)

f. “Support” for a covered group as a ground for detention: The opinion states that the government provided no argument to explain how the laws of war support use of a “support” criterion as a basis for detention, other than what the court found to be an unpersuasive effort at oral argument to root the concept in the notion of co-belligerency.  (p. 18)  Judge Bates concludes that the concept instead is an “import” from civilian criminal law. (p. 18-19)  He therefore concludes: “Detaining an individual who “substantially supports” such an organization, but is not part of it, is simply not authorized by the AUMF itself or by the law of war. Hence, the government’s reliance on substantial support” as a basis for detention independent of membership in the Taliban, al Qaeda or an associated force is rejected.” (p. 19)

g. Support for a covered group as evidence of functional membership in the group: Judge Bates went out of his way to observe that evidence of support—particularly recurring support-could constitute evidence that a person as a functional matter is part of AQ, the Taliban, etc., even if they would not self-identify as such. (p.19-20).

h. Support for hostilities as a ground for detention: Citing the same rational provided above, Judge Bates also rejected the proposition that supporting hostile acts can provide a basis for detention. (p. 20)

i. Committing a belligerent act as a ground for detention: Judge Bates concluded that detention authority does extend to persons who commit belligerent acts, a category he defined with reference to the DPH concept.  (p. 20)  He did not attempt to define the outer parameters of DPH, but did note that the ICRC is engaged in an attempt to do just that, and observed that the outer bounds will be determined as needed in the habeas context on a case-by-case basis.  (p. 21)