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Judge Royce Lamberth adopts Judge Bates’s standard for presidential detention authority

Federal District Judge Royce Lamberth

Federal District Judge Royce Lamberth

A previous post discussed the recent option by Judge John D. Bates in Hamlily v. Obama. In that case, Judge Bates set forth a standard for presidential detention authority. On Thursday, Federal District Court Judge Royce Lamberth adopted Judge Bates’s approach. In Mattan v. Obama, Judge Lamberth explained:

The Court reaches the same conclusion, and for the same reasons, as did Judge Bates of this Court in Hamlily v. Obama, Civ. A. No. 05-763, 2009 WL 1393113 (D.D.C. May 19, 2009). The Court hereby adopts that opinion. The Court concludes that respondents’ claimed authority to detain individuals who are “part of” Taliban, al Qaeda, or associated enemy forces comports with the AUMF’s [Authorization for the Use of Military Force- the Congressional Act authorizing action after 9/11] broad authorization of executive force and the laws of war. However, two elements of the proposed framework fall outside the bounds of both the AUMF and the established laws of war: the claimed authority to detain those who “substantially supported” enemy forces and the claimed authority to detain those who have “directly supported hostilities” in aid of enemy forces. As Judge Bates explained, respondents can point to no authority sustaining detention authority based only upon “support” of enemy forces.
Accordingly, the Court will adopt respondents’ proposed definition except for the two “support”-related elements described above. However, the Court will still consider support of Taliban, al Qaeda, or associated enemy forces in determining whether a detainee should be considered “part of” those forces. Such consideration of “support” factors is consistent with Judge Bates’ opinion and, as Judge Bates noted, is not inconsistent with Judge Walton’s opinion, Gherebi v. Obama, Civ. A. No. 04-1164, 2009 WL 1068955 (D.D.C. Apr. 22, 2009), as applied.

(HT: foreign affairs law)

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.