Judge Bates limits Obama Administration’s detention authorityMay 20, 2009 # 1:23 am # Human Rights, International Law # One Comment
In his opinion in Hamlily v. Obama, issued Tuesday, Judge John D. Bates rejected the Obama Administration’s claim that “substantial support” for al Qaeda, the Taliban or related forces and “direct support for hostilities” can serve as independent bases for detention.
As will be recalled, in response to a request posed by Judge Bates, the Administration proposed the following claim of presidential detention authority:
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. (emphasis added)
While agreeing with most of this claim, Judge Bates notes that
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.
Judge Bates explains:
After repeated attempts by the Court to elicit a more definitive justification for the “substantial support” concept in the law of war, it became clear that the government has none. Nevertheless, the government asserted that “substantial support” is intended to cover those individuals “who are not technically part of al-Qaeda,” but who have some meaningful connection to the organization by, for example, providing financing. Tr. at 16, 32. Regardless of the reasonableness of this approach from a policy perspective, a detention authority that sweeps so broadly is simply beyond what the law of war will support. The government’s approach in this respect evidences an importation of principles from the criminal law context. See Allison M. Danner, Defining Unlawful Enemy Combatant: A Centripetal Story, 43 Tex. Int’l L.J. 1, 11-12 (2007) (observing that the concept of “support” is borrowed from the federal criminal code); Chesney & Goldsmith, at 1120-32 (discussing a “convergence trend” in criminal and military detention models). Again, although this concept may be attractive from a policy perspective, and indeed could be the basis for the development of future domestic legislation or international law, there is at this time no justification — in the AUMF or the law of war — for such an approach. The law of war permits detention of individuals who were “part of” one of the
organizations targeted by the AUMF. That is the outer limit of the Executive’s detention authority as stated in the AUMF and consistent with the law of war. 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.
With respect to the claim that an individual can be detaineed if he or she “directly supported hostilities,” Judge Bates explains:
For essentially the same reasons, the Court also finds that the government’s detention authority does not extend to those individuals who have only “directly supported hostilities.” Although this language received considerably less attention in the briefing and at argument, it suffers from the same deficiency already identified — detaining an individual solely on the basis that he “directly supported hostilities” is inconsistent with the law of war. The government does, however, have the authority to detain “any person who has committed a belligerent act.” And just as the Court will consider evidence relating to “substantial support” of covered organizations
in assessing whether an individual was functionally “part of” the organization, so, too, will it consider evidence of “direct support” for hostilities in assessing whether an individual “committed a belligerent act.”
This makes good sense. The concept of “support” has always bothered me. And even though “substantial support” is more restrictive than the Bush Administration’s language– which lacked the word “substantial”– it would still potentially give the president exceptionally broad detention power. A wide range of actions could be considered to “substantially support” al Qaeda or “directly support hostilites”– such as financial contributions or even pro- al Qaeda rhetoric.
(HT: Bobby Chesney)