No More “Enemy Combatants”?

by Deborah Pearlstein

The Obama Administration selected Friday afternoon (go figure) to release its whammy of a brief on the standard it believes should govern the President’s authority to hold the current Guantanamo detainees.

Here’s the key paragraph:

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.

How is this different from the Bush position? In at least several ways. (1) The President’s authority to hold the detainees flows not from some inherent constitutional authority, but by the statute passed by Congress in the wake of September 11, 2001 – the Authorization for the Use of Military Force (AUMF). The first sentence of the definition above is essentially verbatim a recitation of that statute. (2) The meaning (and limits) of the AUMF is, as the administration brief explains repeatedly, “necessarily informed by principles of the laws of war.” That is, international law matters in interpreting the scope of this domestic law. It is possible that the Bush administration said as much on occasion (can anyone cite an example?). But its reading of international law generally (and international humanitarian law in particular) was so idiosyncratic that it was hard to take such statements seriously. (3) As the DOJ’s press release statement notes, the brief doesn’t use the term “enemy combatant” so it’s no longer meaningful/ relevant to the legal discussion. (4) As the brief also says, its statement of the standard here may be subject to further refinement following the completion of its ongoing task force review of detention policy and standards.

What’s still unclear? The nubbin is in the second sentence. The Bush Administration’s enemy combatant definition was generally this: “an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” The new standard: “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.” Under Obama, now an individual has to have substantially supported – not just “supported” Taliban or Al Qaeda forces. What’s the difference? Perhaps something promising, but it’s hard to say. Other than that, the standards are identical. As the brief says: “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.”

In all events, here’s perhaps cold comfort for all those who’d argued the administration should have pursued the Al Marri case (the non-citizen detained as an enemy combatant in the United States who was recently, grace a Obama, finally charged with a crime and transferred back to civilian custody) all the way to the Supreme Court. The Obama administration may well have argued that the AUMF gives the President the authority to detain individuals picked up in the United States as (if not enemy combatants in name) AUMF detainees. As the brief says: “The AUMF is not limited to persons captured on the battlefields of Afghanistan. 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.” Such a view was in fact expressed in this key colloquy between Senator Lindsay Graham (R-S.C.) and U.S. Solicitor General nominee Elena Kagan at her Senate Judiciary Committee confirmation hearing.

“Do you believe we are at war?” Graham asked.
“I do, Senator,” Kagan replied.
Graham cited the example of someone who is not carrying a gun or fighting on a battlefield. “If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?” he asked. He added that he had asked the same question of Holder, who replied that he agreed that person was on the battlefield.
“Do you agree with that?” the senator said.
“I do,” Kagan replied.

That said, I should back up and note there is at least one other statement in the brief that is, in my view, worth applauding.

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.

Why is this a good thing? Because this brief isn’t about U.S. policy toward detainees generally, or even U.S. policy toward detainees going forward. It’s about the U.S. litigating position toward the unique and woebegone detainees held at Guantanamo Bay – the sui generis set of folks for whom, thanks to the previous administration’s repeated violations of IHL on the books (inhumane treatment, inadequate status hearings, etc. etc.), there are now no good options left – only less bad ones. In undertaking the necessary task of resolving these impossible cases, it seems to me the administration’s brief should be read as an effort to do as little further violence to the law on the books as possible. In insisting the question of substantial support be resolved on a case by case basis, it is trying to avoid letting these hard Gitmo cases make bad law across the board going forward. Under the unique circumstances here, that is perhaps the best we can hope. Stay tuned.

20 Responses

  1. I recognize that Obama supporters are keen to put distance between him and Bush — especially as decision after decision on foreign policy and national-security policy keeps narrowing it — but “support” to “substantial support”?  That’s the change we are supposed to be able to believe in?

    With respect, this just seems more of the same to me — an artful attempt to not limit the President’s power in any real way while appearing to do exactly that.  But note the endless litany of weasel words: “particular facts and circumstances,” “may require,” “informed by,” “need to be further developed,” “not asserting that it can detain anyone” (just some)…

    Color me profoundly unimpressed.

  2. I second Kevin. The brief is disappointing, not the least for its superficial analysis of the “laws of war”. Even the label is problematic (one should speak of the law of armed conflict, or, as far as the Geneva Conventions are concerned, international humanitarian law (ihl)).
    The administration does not mention the label “war on terror”, but it likens the conflict with Al-Quaeda to international armed conflict rather than to non-international armed conflict, as the Supreme Court suggested in Hamdan (while not explicitly endorsing that view). It also refers to “military necessity” as a general principle of “the laws of war” (not: international humanitarian law), which is in substance a reversion to the pre-Geneva Conventions views. Under current law, military necessity can only be invoked as justification for violating rules of ihl when this justification is explicitly provided for.
    In addition, the analysis of the existence of an armed conflict under international law is poor. Not even the Supreme Court is taken into account. I wonder whether any expert on ihl was involved.
    Finally, it is interesting to note that the law of international armed conflict is taken as a means to interpret the AUMF. Thus, it is the AUMF, and not the “laws of war” as such, that provides the authority to detain.
    I would suggest that the administration would rather find domestic authority (in conformity with ihl standards as contained in common art. 3 or Article 75 Additional Protocol II) than self-create “laws of war” that would fill the gaps of domestic law.

  3. I, for one, am profoundly impressed and pleased.  First, the administration is actually paying attention to the scope of authority provided by Congress.  That the President recognizes he is limited by law is an important development.  While one might fault Congress for authorizing the use of military force against “organizations” or “persons”, of for doing so with such broad language, it is an important step (and historically accurate one) to recognize the limits of presidential power as including law enacted by Congress.

    Further, while the choice of the term “laws of war” is outdated from an IHL standpoint, it is an important harkening back to U.S. roots in this area.  As I have recently explained (in the Journal of International Criminal Justice), the regulation of the means and methods of war in the U.S. began with a domestic/municipal incorporation and adaptation of the law of war branch of the law of nations (in the English common law tradition) to the U.S. Civil War, an internal armed conflict.  This was, of course, before modern, convention-based IHL purported to minimally regulate in this area.  This is an important precedent for the conduct of war against non-state actors.  Just because IHL’s treaty law doesn’t cover everything, it doesn’t mean that international law is irrelevant.  Recognizing this historical law of nations based “law of war” will both empower the President and delimit his power.  It does not, as Andreas suggests, mean that the President can violate modern IHL treaties.  That comment misunderstands the relationship between the historical implementation of the law of war branch of the law of nations and conventional IHL.
    The call for the administration to find “domestic authority” to detain also misunderstands the nature of the U.S. constitutional powers at issue here.  The President as Commander in Chief has always had the implied power to do anything permitted by the law of nations.  (For those highly familiar with the law in this area, the Brown v. U.S. implication to the contrary is a truly unique set of facts that I explain in detail in a different paper that will appear later this year if all goes well.)

    The problem in talking with our friends across the ocean here is that those raised in the civil law tradition do not understand our common law traditions in this area, and vice versa.  Implied powers are very important in many contexts in the U.S.  The ability to adapt customary international law to similar but different circumstances is also a highly relevant feature of the English common law tradition.  Failing to understand that leads to unfortunate and erroneous legal analysis of the type appearing in the EJIL Talk trackback.

    In short, the administration appears to be headed in the right direction when one fully understands the history and relationship of U.S. and international law in this area.  Whether his lawyers will heed to the limits of law in all circumstances, or succumb to the temptations of earlier administrations in certain areas, remains to be seen.

  4. John,
    Let me first add that I applaud the willingness of the Obama administration to follow international law – I did that on other occasions already when it was unduly, in my view, criticized for the orders of January 22. The problem with the brief is, however, that it does not make a serious attempt to find out what that international law is, but that it simply postulates what it wants it to be – in a way that is more heavily influenced by the previous administration’s views than by ihl or, for that matter, the Supreme Court Hamdan precedent.
    However, the US cannot create an international law of its own. With respect, this has nothing to do with civil law and common law – if you do not charge your English cousins to have become civil lawyers.
    Certainly, I also regard Afghanistan/Pakistan as an armed conflict, albeit of a non-international character. Consequently, they are a matter of criminal law, including its extraterritorial application, subject to the strictures of common article 3 of the Geneva Conventions and the customary law of Article 75 Additional Protocol I. Other terrorist acts have been simply that – heinous and cowardly crimes, some of them of an international, all of them of a domestic criminal law character.
    In any case, it is mainly domestic law that covers the prosecution of these crimes, except that the humanitarian minimum standards must be observed regardless of any classification. It is here, again, where I whole-heartedly applaud the willingness of the administration to apply these standards.

  5. Andreas, I think my response to Marko at EJILTalk would address your points on the civil and common law distinction and its importance.  It is important only as a matter of the history of U.S. law in this area.  As we are discussing what U.S. law authorizes or implies, I believe it is the most relevant.  The traces of this body of U.S. law are evident in statutes and decisions.

    I do not disagree with you on the applicability of relevant CIL to issues of prosecution and detention.  My fundamental point is that U.S. law, in Supreme Court cases from 1800-2008, recognizes the implied powers of military necessity in both international and non-international armed conflict.  The problem is to then recognize the limits on those powers, which the current administration appears inclined to do.

    I have several draft articles addressing many of these points, one specifically regarding the implied powers of war as a matter of U.S. law.  Everything takes time…

  6. Using this phrase in a non-sexist way that I believe accurately describes what Obama is doing.

    Lipstick on a pig.  The lack of Geneva 4 – security detainee basis is pathetic.

    As to cites to pre-Geneva US law – those are pre-Geneva US precedents.


  7. Well I have a longer response pending moderation, but I really think folks are kidding themselves that this brief is in any sense a positive development. In fact, it’s just one more restatement of the Bush administration’s fraudulent arguments written by the same Civil Division lawyers who’ve been writing the government’s fraudulent briefs in  the detainee cases since 2002. The clearest thing here is that the Obama administration just doesn’t get it — they’re allowing themselves to become complicit in the war crimes of the Bush administration through inattention, political correctness, over-caution, and bureaucratic inertia.

    And this brief in and of itself is an offense pursuant to 18 USC  2441(c)(2) as it refers to the Hague IV (1907) annex of regulations, art. 23[h].

  8. Charles and Ben,

    My arguments are ABSOLUTELY no such thing.  Please check out the recent exchanges on EJIL Talk.



  9. In June 1950, the United Nations recognized the Republic of Korea to be the valid government of the part of the Korean peninsula it controlled, but the UN and Western countries recognized no government in the northern half of the peninsula. Therefore, when the south was attacked by armed forces from the North, this initiated a war of a non-international nature. This did not change when the enemy forces were substantially reinforced by units of the PLA, since the Communist government in China was also not recognized by either the UN or the West.

    What was different here is that nobody was under the misapprehension that an invasion by divisions of soldiers and tanks was “terrorism”. It was a war. In the subsequent 60 years, there are no books, no articles, no papers about the “Korean armed conflict of a non-international nature”, but lots of published material about the Korean War.

    Enemy soldiers captured during the Korean non-international armed conflict were held as POWs. The Geneva Convention had just been passed, but none of the Korean governments and non-governments had signed it. Everyone understood that there were centuries of international law still in force, law that the Geneva Conventions supplemented but did not replace.

    Soldiers, of course, have combatant immunity. They cannot be charged with civilian crimes when they attack, invade, fight, and kill. You may be inclined to call them names, like “terrorist”, but just calling a soldier by a bad name does not change a War into a law enforcement activity. However, several US administrations have imagined that they can simply dismiss the enemy actions in this armed conflict as “terrorism” and then they don’t have to treat even enemy soldiers captured on the battlefield as real POWs in a real war. Even when the enemy conducted the quintessential act of armed conflict, attacking a US warship (the Cole), damaging the ship, and killing sailors, the response of the President, Congress, and the media was universally to declare this an act of “terrorism” instead of an act of war.

    I look on most maps and find a country labelled “Afghanistan”. In 1995-2001 it was ruled by a government led by the Taliban. That government had an army of 45,000 light infantry. Its leader, Mullah Omar, authorized an operation where 19 soldiers committed a war crime on 9/11/01. If that crime suddenly means that the country is not a country, and the government is not a government, and the army is not an army, and the soldiers are not soldiers, and an infantryman in the Panjshir Valley loses his combatant status, then international law doesn’t mean much.

    Even the State Department did not claim that the denial of Geneva protection was based on the claim that the enemy were terrorists. The official argument was that the Afghan army was really a standing militia, and that a militia has to meet additional Article 4 criteria. The Afghan militia failed to measure up.

    The problem is that there is a vast logical gap between a calculus based on Article 4, a calculus based on Article 2-3 (international/non-international), and one based on a law enforcement response to terrorism. If the 19 hijackers had not committed a war crime, the Afghan militia would still have been wearing the same clothes, carrying the same weapons, and following the same leaders. But then nobody would be a criminal subject to prosecution because there would be no criminal terrorist organization to support.

    By luck this particular war happens to be an armed conflict of a supposedly “non-international” nature AND the army was a militia that did not wear uniforms AND it happens that the enemy committed war crimes that some would call “terrorism”. The three are completely independent logical propositions, but the fact that they all happen to apply to this one conflict allows some to assert principles of international law that don’t and logically can’t exist. You can have a non-international conflict where the enemy are not covered by Geneva III, are regular uniformed soldiers, and are not terrorists (it was called the Korean War). Without a plausible crime or terrorist organization, soldiers captured during such a conflict have to be held under the laws of war (or laws of armed conflict if you prefer). If 19 of these soldiers then do commit a war crime, that doesn’t suddenly turn the POWs into criminals or turn the war into a criminal justice enforcement matter.

    The previous administration repeatedly claimed some power under Article II to detain enemy combatants. The Supreme Court repeatedly ruled that there was a power to detain, but it derived not from the Constitution but rather from the laws of war (international common law). This is a critical distinction, because an Article II power would belong exclusively to the President while international common law can be superseded by statute and can be interpreted by the courts. The current administration has simply decided to accept what the court already made clear in Hamid and Hamdan, and to drop the Article II argument that the courts repeatedly rejected. They have also rejected the exclusive criminal prosecution model that some critics seem to like. It looks like they are actually trying to apply some logic to the analysis rather than just selecting every possible advantageous position (like Bush) or adopting some nonsensical theory that contradicts history and common sense (like many of his critics).

  10. Dear Howard,
    1) Korea was an international armed conflict, if only for the intervention of China and Russia on the North Korean side. The Geneva Conventions do not make such conflict depending on recognition etc.
    2) What you call “international common law” is not international law. If anything, it is customary US military law. Since when can one country alone make international law binding on anybody but itself?
    This is exactly the point Kevin, Marko and myself are making: Having not found the necessary domestic authority to detain, the brief invents an authority under the “international laws of war”. But, as the brief itself appears to recognize at the beginning, international law does not contain those rules, not before Sept. 11, not afterwards. The brief does cite to developments in international jus ad bellum, but not jus in bello – without pointing out the difference.

  11. The modern Geneva Conventions were signed in 1949, but for reasons having to do with the formal cessation of WW2, they weren’t ratified by the US or Britain until 1955. The Korean conflict was under Geneva 1929.

  12. Andreas:

    Although Russia certainly supported the North, there were no Russian troops in the war. According to the UN, the US, and most Western countries, the government of China was on Formosa and it definately did not support the North. As I noted, most of the Korean War was fought by units of the PLA, but they themselves were regarded as non-state actors, part of the Communist (civilian?) faction in a country nominally governed by the Nationalists. So all of the actual troops fighting against the UN were in unrecognized armies of unrecognized governments of countries nominally governed by someone else.

    The Taliban, who actually controlled Afghanistan, were recognized only by Pakistan. The US recognized President Rabbani, who not only didn’t have a government and no longer even had a cabinet. Al Qaeda was integrated into the Taliban government as something like an honorary Afghan tribe reflecting the contribution of foreign volunteers to the great war of liberation against the Soviets. If you seriously want to claim that either the Taliban or al Qaeada were non-state actors, you have to gather a whole lot of information from the CIA and Afghans about how this very, very non-Western government actually worked internally. Anecdotally,  if you wanted something you got an audience, sat on some rugs, drank a lot of tea, and horse traded. Omar got the death of Ahmad Shah Massoud in exchange for approval of “the planes operation” of 9/11. This is not the way any Western government is run, but it is a government nevertheless.
    A lot of people who don’t know jack (including some judges) have pronounced on the issue of state/non-state without even being briefed on the question. Can the courts form an opinion, or do they have to defer to the political branches and the CIA, which after all has all the contacts, translators, analyists, etc.
    The original post is about a document submitted by the current administration to a US court with regard to current cases. It is written in language that reflects the US judicial system view of international law, particularly with regard to armed conflict. They are a common law because they are mostly unwritten, though widely known and almost universally practiced. Thus the Supreme Court in ex parte Quirin speaks of “the applicable principles of the common law of war”. It may be that scholars take some different view in theory, but if you are going to brief a US court you will get farther using the language of precedent than the currently accepted phraseology from international law conferences.

  13. Howard,

    As Andreas explained, the existence of an international armed conflict does NOT depend on the recognition of a particular regime or government, so long as they are in de facto control of a state. (see, e.g., Y. Dinstein) The Korean War was undoubtedly an international armed conflict, though some parties to it were at the time not parties to the 1949 Geneva Conventions – an eventuality foreseen by the Conventions in CA 2(3). It of course could have been a ‘mixed’ conflict in that it had an intra-Korean, non-international component, as the separate statehood of the two Koreas might not have been consolidated at the time (something that I am unsure of without further research). The 1949 Conventions were nonetheless applied by most of the parties, at least partially, who issued formal proclamations to that effect. (see L. Green; see also the ICRC Commentary to GC III, Art. 118).

    At any rate, the distinction between states and non-states, and between international and non-international armed conflict, is not some sort of academic mumbo-jumbo as you seem to fervently believe, but is built into the very fabric of international law, as well as into the text of the treaties that we are discussing.

    As for the Obama administration brief, I would just note that it makes no mention of the ‘common law of war’ as a distinct body of US municipal law, but speaks in the terms of the modern  international law of war or armed conflict, which it uses (rather poorly) to interpret a statute, the AUMF.

  14. If the DPRK was in effective control of Korea, and the PRC was in effective control of China, then the Taliban/al Qaeda government was equally in effective control of Afghanistan. The fact that al Qaeda has an transnational ideology does not make it materially different from the international communist conspiracy in aspiration. Afghanistan is a High Contracting Party to the Geneva Convention and the Taliban inherit that status when they became the effective but unrecognized government of the country. They may have rejected international law on religious ground, but that had no effect on their treaty status. I do not assert that the distinction between state and non-state actors is meaningless, but it will become so if you get to declare that the DPRK was a state actor in 1950 but the Taliban were not in 2001.

  15. Howard,

    Nobody disputes (except initially for the Bush administration) that the Taliban were, as the effective government of Afghanistan, a party to an international armed conflict. The issue with the Taliban, as far as IHL is concerned, is whether or not their fighters satisfy the criteria for combatant status.

    As for Al-Qaeda, your argument that they were functionally a part of the Taliban/Afghan government armed forces has not been accepted by the US, but more importantly, it has purely as a matter of fact not been accepted by anyone else either. Other than for your own opinion, you have offered no evidence that Al-Qaeda was functionally integrated into the Afghan armed forces.

    Then of course there is the problem of all those people detained after the transformation of the Afghan conflict into a non-international one, or without any connection to any armed conflict altogether. The Obama administration makes no distinction between these various categories of detainees, as far as I can tell from its brief and other statements.

  16. “Other than for your own opinion, you have offered no evidence that Al-Qaeda was functionally integrated into the Afghan armed forces.”
    Jane’s Defense 08 Oct, 2001

    “Of the 45,000 men available to the Taliban, Pakistani and Arab religious volunteers have played an increasingly important military role. The Arabs, deployed mostly on front lines north of Kabul, number an estimated 500 to 600 and form part of Osama bin Laden’s `055 Brigade’. Pakistani volunteers are far more numerous. By mid-1999 as many as 9,000 to 10,000 Pakistanis were believed to be serving in Taliban ranks, some in combat roles and others in rear support, static guard and administrative functions. ”

    “More recently, another distinct element has been playing an important military role: Pakistani and Arab religious volunteers. The Arabs, mostly deployed on front lines north of Kabul, are estimated to number between 500 and 600. Pakistani volunteers are far more numerous. By late 1998, as many as 9,000 to 10,000 Pakistanis were serving in Taliban ranks. These different backgrounds have inevitably resulted in some friction. To minimise this, Taliban troops are kept in separate units based on nationality and, in some cases, region, district, or tribe.”

  17. Marko and Howard,

    I would once again refer you to my most recent posts at EJIL Talk as a way to make some sense of this.

    Best to all,


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  2. […] previously classified by the Bush administration as ‘enemy combatants.’ (Analysis by Deborah Pearlstein at OJ; more from the Lift). The brief now outlines the administration’s official position on the […]

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