Judge Wilkinson and the Ambiguity of the “Conduct that . . . Aims to Harm” Criterion

Procedural safeguards and substantive detention criteria exist in a dynamic relationship.  One can ramp up procedural safeguards, for example, but this may have little effect on the government’s capacity to detain if the substantive detention grounds are defined sufficiently broadly.  And by the same token, an unduly strict definition of who may be detained will limit the utility of a detention system no matter how flexible its procedural features may be.  Accordingly, I think that Marty is quite right when he argues here and here that this is a crucial issue.

In both posts, Marty draws attention to Judge Wilkinson’s opinion (concurring in part and dissenting in part) in al-Marri, which offers a set of detention criteria that “conform to the evolving principles of the law of war” and that “should avoid . . . constituitonal concerns” even as applied to “detention of an enemy combatant apprehended on American soil.” (slip op. at 175-76).  Marty predicts that these criteria, or something like them, may become “the standard that courts will employ in the habeas cases and elsewhere.”  What are these criteria?

In sum, the following three criteria must be met in order for someone to be classified as an enemy combatant: the person must (1) be a member of (2) an organization or nation against whom Congress has declared war or authorized the use of military force, and (3) knowingly plans or engages in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of the enemy nation or organization. (slip op. at 179).

There are at least two ways to approach Judge Wilkinson’s analysis.  First, we can critique it in terms of the extent to which it does or does not in fact reflect IHL principles.  Gabor Rona does that here, and we should probably spend some time today grappling with the questions he raises.  But for now I want to focus on a second approach, in which we consider Wilkinson’s analysis for its merits either because it may serve as a template for a domestic law solution to the scope-of-detention dilemma, or because it may well catch on as the constitutional standard irrespective of how well it reflects IHL.

Marty emphasizes that these criteria are relatively narrow, or at least narrow in comparison to the capacious scope of detention authority implicitly asserted by the administration in recent years (as illustrated by the Uighur detentions).  That seems correct, but just how narrow they are really isn’t clear.

Consider the third criterion, which requires a showing that the person “engaged in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of the enemy”.  Judge Wilkinson notes that there are two core scenarios in which this test is satisfied: (i) “those who use military-like force against American soldiers or civilians” (query why an attack on British, Afghan, or other allied soldiers or civilians would not suffice as well), and (ii) members of a sleeper cell planning a violent attack even if at the preliminary stage (slip op. at 178).  He also notes a core scenario in which it would not be satisfied, citing the example of a “physician who treated a member of al Qaeda, because [he or she] intend[ed] no harm to persons or property.” (id.).  But what about the grey area between these poles, in which members of a group engage in a spectrum of activities that to varying degrees contribute to the danger posed by other members of the group?  Is the bomb-maker covered?  His link to violence is relatively clear, even if he never knows just how his bombs will be used.  What about the training camp arms instructor?  The link is more tenuous.  What about the financier, or the document-fraud specialist?  I would argue that each of these members of the group are engaged in conduct that “aims to harm persons or property for the purpose of furthering the military goals” of the organization, but would everyone agree?  Probably not, particularly if one thinks that this question should be resolved by analogizing to the “direct participation in hostilities” concept (where these precise scenarios generate very sharp debate).  All of which suggests both that the judges or legislators utilizing this concept had better expand upon it in considerable detail, and that the Wilkinson test may be a bit broader than appears at first blush.

In response to that last point (that the test may be broader than at first appears), the natural response is to emphasize that in addition to conduct the Wilkinson test requires (i) membership in an entity (ii) subject to the Congressionally authorized use of force.  Ambiguity lurks here as well, however, thanks to the uncertain meaning of “membership” in the context of entities such as al Qaeda.  Judge Wilkinson concedes that membership is an “amorphous” concept, and thus goes on to note that this criterion could be satisfied by a showing that a person took “overt steps to aidor participate in the organization’s activities.” (slip op. at 176) (emphasis added).  This certainly rules out the infamous Little Old Lady in Switzerland scenario, but it does open the door to a relatively broad understanding of membership, one that might pick up a great deal of the conduct that the government might otherwise try to categorize under the heading of “support”; arguably all that has been added here is a mens rea requirement.

Finally, let me close by raising a question about the requirement of a link to a declaration or AUMF.  Consider the post I put up last night discussing the complex array of forces currently engaging in armed attacks on Afghan and Allied forces in the Afghan-Pakistan theater.  Some of those forces are within the scope of the 9/18/01 AUMF, but arguably some are not (e.g., Lashkar-e-Taiba).  Insofar as we intend for a test along the lines of the Wilkinson criteria to operate in connection with activities in a combat zone such as that, it might be wise or necessary to expand the test to ensure that it reaches the full range of enemy forces that as a factual matter are engaging in the conflict against us.