Professor Robert Chesney's analysis:
* In re Guantanamo Detainee Litigation (Mar. 13, 2009) (slightly narrowed detention policy for GTMO)
As many of you know, today was the deadline for the Obama Administration to submit a revised definition of “enemy combatant” in connection with ongoing habeas proceedings at GTMO before Judge Bates. The filing, and an accompanying declaration from AG Holder, are attached. The bottom line is that the claim of detention authority is slightly narrower than before, in that support is a basis for detention only if the support is “substantial.”
1. The revised detention standard applies only to Guantanamo detention; the government explicitly reserves the question regarding the scope of its authority elsewhere (e.g., Bagram).
2. The government is defending its detention authority at GTMO on AUMF grounds only (not independent Article II grounds).
3. The revised standard differs from the prior standard in that “support” for al Qaeda, the Taliban, or associated forces must be “substantial” in order to trigger detainability. It does not differ otherwise.
The government urges rejection of a “direct participation in hostilities” standard for detainability under the AUMF. The government contends that both Common Article 3 and AP II, for example, contemplate there will be a distinction between armed groups and the civilian population and that the state may detain the former. Note that this would seem to preserve the idea of a distinct category of persons in armed conflict who are neither POWs nor civilians.
On what counts as membership in or being part of AQ, the Taliban, or associated forces, the brief refers to both formal indicia such as loyalty oaths and functional indicia such as training (including staying at safehouses used for trainees)
Detention authority is not geographically limited to captures in Afghanistan (they give the example of a facilitator overseas who recruits for al Qaeda).
4. The government reserves the right to refine its position further as its ongoing policy review process continues.
Here are the key excerpts from the brief:
Through this submission, the Government is refining its position with respect to its authority to detain those persons who are now being held at Guantanamo Bay. The United States bases its detention authority as to such persons on the Authorization for the Use of Military Force (“AUMF”), Pub. L. 107-40, 115 Stat. 224 (2001). The detention authority conferred by the AUMF is necessarily informed by principles of the laws of war….
This body of law, however, is less well-codified with respect to our current, novel type of armed conflict against armed groups such as al-Qaida and the Taliban. Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict. Accordingly, under the AUMF, the President has authority to detain persons who he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for the September 11 attacks. The President also has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.
[Accordingly, the government offers the following revised substantive test for detainability:
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 were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.
… It is neither possible nor advisable, however, to attempt to identify, in the abstract, the precise nature and degree of “substantial support,” or the precise characteristics of “associated forces,” that are or would be sufficient to bring persons and organizations within the foregoing framework. Although the concept of “substantial support,” for example, does not justify the detention at Guantanamo Bay of those who provide unwitting or insignificant support to the organizations identified in the AUMF, and the Government is not asserting that it can detain anyone at Guantanamo on such grounds, the particular facts and circumstances justifying detention will vary from case to case, and may require the identification and analysis of various analogues from traditional international armed conflicts. Accordingly, the contours of the “substantial support” and “associated forces” bases of detention will need to be further developed in their application to concrete facts in individual cases. [emphasis added]
This position is limited to the authority upon which the Government is relying to detain the persons now being held at Guantanamo Bay. It is not, at this point, meant to define the contours of authority for military operations generally, or detention in other contexts.
… any determination of whether an individual is part of these forces may depend on a formal or functional analysis of the individual’s role. Evidence relevant to a determination that an individual joined with or became part of al-Qaida or Taliban forces might range from formal membership, such as through an oath of loyalty, to more functional evidence, such as training with al-Qaida (as reflected in some cases by staying at al-Qaida or Taliban safehouses that are regularly used to house militant recruits) or taking positions with enemy forces. In each case,
given the nature of the irregular forces, and the practice of their participants or members to try to conceal their affiliations, judgments about the detainability of a particular individual will necessarily turn on the totality of the circumstances.
… Finally, the AUMF is not limited to persons captured on the battlefields of Afghanistan. Such a limitation “would contradict Congress’s clear intention, and unduly hinder both the President’s ability to protect our country from future acts of terrorism and his ability to gather vital intelligence regarding the capability, operations, and intentions of this elusive and cunning adversary.” Khalid, 355 F. Supp. 2d at 320; see also Ex parte Quirin, 317 U.S. at 37-38. Under a functional analysis, individuals who provide substantial support to al-Qaida forces in other parts of the world may properly be deemed part of al-Qaida itself. Such activities may also constitute the type of substantial support that, in analogous circumstances in a traditional international armed conflict, is sufficient to justify detention.
[And a very interesting footnote]… 2 Moreover, courts should defer to the President’s judgment that the AUMF, construed in light of the law-of-war principles that inform its interpretation, entitle him to treat members of irregular forces as state military forces are treated for purposes of detention. See AUMF, § 2(a) (authorizing the President to use “all necessary and appropriate force” against those that “he determines” planned, authorized, committed, or aided the September 11 terrorist attacks or harbored those organizations); The Paquete Habana, 175 U.S. 677, 700 (1900) (court construes customary international law de novo only in the absence of a “controlling executive or legislative act or judicial decision”). A deferential approach in this context is consistent with the commonsense understanding that “[t]he war power of the national government ‘is the power to wage war successfully,’” Lichter v. United States, 334 U.S. 742, 767 n.9 (1948) (citation omitted), as well as the Supreme Court’s directive in Boumediene that “[i]n considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches,” 128 S.Ct. at 2276 (2008) (citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936)).
Petitioners have sought to restrict the United States’ authority to detain armed groups by urging that all such forces must be treated as civilians, and that, as a consequence, the United States can detain only those “directly participating in hostilities.”3 The argument should be rejected. Law-of-war principles do not limit the United States’ detention authority to this limited category of individuals. A contrary conclusion would improperly reward an enemy that violates the laws of war by operating as a loose network and camouflaging its forces as civilians.
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