It’s Official – and a Word on GCIV Art. 42

As usual, I’m likely last online to note the now-official news of Harold Koh’s nomination to be Legal Adviser at the U.S. Department of State. For what it’s worth, we’d seen it coming. If the Senate has any sense, the nomination will sail through. I can’t imagine a candidate more qualified. Congratulations Dean Koh!

And now back to the detention front, which this past week saw the filing of a brief on behalf of a group of detainees responding to the Obama position on the scope of its Gitmo detention authority under the Authorization for the Use of Military Force statute (AUMF). Scotusblog has a fine summary and the brief here. In essence, the detainees agree that the scope of detention authority under the AUMF should turn on “that authorized by the traditional law of war.” What exactly does that law authorize? Well, the brief doesn’t particularly spell that out other than to be clear that whatever it means “substantially support” (Taliban or Al Qaeda forces engaged in hostilities against the United States), it’s almost certainly broader than what IHL allows.

So the litigating lines, such as they are, are drawn. And the question remains, what detention power does IHL contemplate? More specifically, what detention power does the IHL of non-international armed conflict contemplate – for if there is any armed conflict within the meaning of international law between the United States and Al Qaeda, it is perforce a non-international one. As I wrote here last week, I believe the IHL of NIAC is effectively silent on the question of detention authority, leaving the question of detention authority to applicable domestic law to determine. Since that domestic law is the AUMF here, I advised the court to look to traditional principles of statutory construction to flesh out who Congress intended to be militarily detained.

Professor Goodman, whose important piece I noted here last week, seems to suggest a different view of NIAC. In it, he writes:

The Fourth [Geneva] Convention, under Articles 5, 27, 41-43, and 78, plainly permits the detention, or internment, of civilians not according to status-based categories, but according to whether an individual poses a security threat. In noninternational armed conflicts, international authorities have applied the same principle. Thus, states may detain a civilian without finding that the individual directly participated in hostilities.

He is certainly right about what GCIV authorizes with respect to civilians detained in an international armed conflict – a state-v.-state war with an endpoint the law fairly clearly defines. And he is also right to note that many critics of Bush Administration detention policies tended to overlook that reality. But what about the critical, if indeterminate, proposition that “international authorities have applied” the same principle to NIAC? As soon as I’m back from this week’s ASIL meeting in D.C., I’ll have a look at the authorities he cites at footnote 12 in support: an article by Joanna Dingwall on ICTY jurisprudence; a discussion of UN Human Rights Commission examples from Zegveld’s “The Accountability of Armed Opposition Groups in International Law”; and a 1999 report to the Inter-American Comm’n on Human Rights regarding Colombian civil war.

In the meantime, it seems as though a host of cautions are in order (in no particular order). First, just because some “authorities” have applied the same “principle” (presumably a principle in which security detention of civilians is permitted) in NIAC, doesn’t make that principle a statement of binding international law – either treaty-based (GCIV by its terms is about IAC) or customary.

Second, even if NIAC did contemplate security detention as a matter of international law, this doesn’t resolve the question of what the AUMF authorizes the President to do under U.S. law. Among other things, constitutional protections of due process and separation of powers principles almost certainly require that if Congress were going to authorize detention on the scale this view implies, it would have had to say something a great deal more clearly than it did in the AUMF. It’s one thing for the AUMF to incorporate by reference a detention authority in IAC that is not only made explicit in the terms of several treaties, but entirely consistent with historical practice, and (unlike in NIAC) has a duration/endpoint that is defined in law. (In any case, the Supreme Court said as much in Hamdi.) It is quite another thing to bootstrap a deeply vague NIAC detention authority into an already vague federal statute and assume that too passes constitutional muster. Call it the principle of legality in international law – it all amounts to the same thing.

Third, even if one could legitimately – under both constitutional and international law – lift a provision like GCIV Article 42 whole hog into the context of NIAC, Article 42 detention authority even in the more constrained context of IAC is dramatically limited, permitting only that detention as is “absolutely necessary” for the security of the detaining power. Is it “absolutely necessary” for the security of the United States that it be able to detain terrorist suspects picked up anywhere in the world under a legal authority that goes beyond its own sweepingly extraterritorial and often preventively focused criminal law? Guess we’ll find out if the administration advances the Art. 42 theory in court.