Three Thoughts on the Preliminary Detention Report

by Kevin Jon Heller

My thanks to Deb for her post on the Preliminary Report.  I won’t rehash what she said; I just wanted to offer a few thoughts on the military commissions and the detention policy.  First, I think it is interesting that the Obama administration seems to be conceding that “material support for terrorism” is not a violation of the laws of war and thus cannot be prosecuted by a military commission.  Here is what David Kris, an Assistant Attorney General, told the Senate Armed Services Committee a couple of weeks ago:

There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy. However, we believe conspiracy can, in many cases, be properly charged consistent with the law of war in military commissions, and that cases that yield material support charges could often yield such conspiracy charges. Further, material support charges could be pursued in Federal court where feasible.

This is a welcome admission, for reasons I have discussed before.  That said, I wish Kris had provided some explanation of why the Obama adminstration continues to insist that “conspiracy can, in many cases, be properly charged consistent with the law of war in military commissions.”  I think that is a difficult argument to make, for reasons that Steve Vladeck has ably explained in a Northwestern University Law Review colloquy entitled — delightfully — “On Jurisdictional Elephants and Kangaroo Courts.”  Indeed, as Steve notes, the plurality in Hamdan concluded that conspiracy is not a substantive violation of the laws of war (pp. 603-04).

Turning to the Preliminary Report itself, I am less certain than Deb that the Obama adminstration intends to rely on the AUMF for the power to detain individuals who — according to the administration — cannot be prosecuted either in federal court or by a military commission.  I was struck by the following comment in the report:

Important questions remain concerning our policies in the future concerning apprehension, detention, and treatment of suspected terrorists, as part of our broader strategy to defeat Al Qaeda and its affiliates.  We need to consider in greater depth… what the rules and boundaries should be for any future detention under the law of war.

That statement makes sense concerning members of “Al Qaeda and its affiliates” captured in Afghanistan, where the US is clearly engaged in an international armed conflict. It makes no sense at all, however, concerning individuals captured outside of Afghanistan, who are not engaged — as Hamdan held and as IHL scholars nearly uniformly agree — in an international armed conflict with the US.  As Marko Milanovic has pointed out, because IHL has nothing to say about detention in non-international armed conflicts, it is a category mistake to derive “rules and boundaries” for detaining such individuals from the “law of war.”  Such detention can only be justified by US law, such as (perhaps) the AUMF:

International armed conflicts are conflicts between two states, two equal sovereigns. That is why the combatants in such conflicts have the privilege to participate in hostilities, and can at the same time be lawfully killed. If captured, they can be lawfully detained as prisoners of war so that they do not participate in hostilities, for the duration of the hostilities (see Arts. 4 & 118 of the Third Geneva Convention). Civilians can also be interned, if the security of the Detaining Power makes it absolutely necessary, on an individual basis and with periodic review (see Arts. 41-43 of the Fourth Geneva Convention).

In both cases it is international law itself that provides the authority for detention. But this is simply NOT the case in non-international armed conflict. In such conflicts, IHL neither authorizes nor prohibits detention or internment, but leaves this matter to be regulated by domestic law and by other parts of international law, such as human rights law. The reason for this is that there is no privilege of belligerency in non-international conflicts, no right to participate in hostilities, as states would NEVER recognize the right of non-state actors to use force against them.


The Obama administration’s position is thus internally contradictory. On the one hand it claims that the US is engaged in a non-international armed conflict with Al-Qaeda, and on the other tries to import rules governing international conflicts into precisely the one area where they cannot be imported. International law governing non-international armed conflict has absolutely nothing to say on the authority to detain, and it cannot be used to interpret the AUMF as creating such authority. If the AUMF actually contained a provision with the detention standard proposed by the administration, then this standard could be assessed on its own merits against the US Constitution and international human rights law. But the AUMF contains no such provision, and it just cannot be read into a mere authorization to use force.

Finally, it’s worth noting that the Detention Policy Task Force is clearly not limiting its inquiry to individuals who have already been captured.  As the report indicates, the Task Force is planning to consider “in greater depth… what the rules and boundaries should be for any future detention under the law of war.”  That’s troubling, given that the Obama administration has repeatedly claimed that a preventive-detention scheme is only necessary because of the evidentiary problems created by the Bush administration’s torture regime.  If that were true, there would be no need for preventively detaining members of “Al Qaeda and its affiliates” captured in the future, who would presumably not be tortured.  Glenn Greenwald says it best:

Nobody is talking about confining the power of preventive detention or military commissions to current Guantanamo detainees who were tortured.  The opposite is true: this is to be a permanent, institutionalized detention scheme with the power vested in the President going forward to imprison people with no charges.  Claiming this is necessary because of what Bush did to the 230 remaining Guantanamo detainees is a total nonsequitur.  If, as Obama defenders claim, that is really the justification, why will these powers apply well beyond that?

An excellent question.

6 Responses

  1. Let’s question the assumption that international conflicts are between states, two equal sovereigns.  I wonder if that is objectively true — while it certainly is an underlying assumption to the 20th century law of war paradigm — perhaps part of the analytical and legal problem we struggle with is that the assumption is no longer valid.  If this is so, then our legal paradigm cannot succesfully provide a framework for analysis and problem solving.  I am not at all sure it is true to say today that international law is limited to regulating conduct between and among states.  It seems to me that it reaches further, and so therefore should the laws of war.

    That said, it seems certainly true to me that states will NEVER recognize the rights of non-state actors to use force against them.  But does that refusal of recognition necessarily mean that force used by a non-state actor cannot constitute and international conflict?  Perhaps only if we insist on defining it to be so as a matter of law –but then, does not that insistance refuse to recognize the realities of the 21st century international order?  Do not non-state actors act on the international stage, and interact with states?

    The recent ICRC interpetive guidance on the notion of direct participation in hostilities, with its ideas regarding membership in organized armed groups, may provide some useful insights in this regard.

    I know the U.S. Supreme Court has characterized the conflict with al Qaeda as a non-international armed conflict, probably on the basis that only state to state conflict can constitute an international armed conflict.  This would certainly undermine the use of the AUMF to import laws for international armed conflict into as suggested in the main post….

    But I am not sure this is the best approach.

    It seems to me that the inherent contradiction in the Bush administration approach to the conflict with al Qaeda was to claim the rights and privileges of combatants in an international armed conflict for its own, but to deny any aspect of those to the “other side.”  So U.S. soldiers had the right to kill the enemy, but could not be lawfully killed by them. U.S. soldiers had combatant’s privilege, the enemy did not.  This breaks the distinction between jus ad bellum and jus in bello, and holds each individual enemy responsible both for the decision to go to war as well as for his or her conduct in its execution — while seeking to claim and retain the distinction for the U.S. 

    What we need to develop, it seems to me, is a paradigm that retains that distintion while recognizing that “soldiers” of a non-state international actor do, as a matter of fact, fight in international wars against states, declared by a larger organization of which they are a part; and that states must and may defend themselves from such efforts and related attacks.  The ICRC idea of membership in organized armed groups, it seems to me, is a useful step in that direction, and worth exploring in the context of the issues illuminated by this post.

  2. Alan,

    It is quite clear from state practice and the ICTY decisions that a great bit of IHL applies to more than merely international armed conflict (IAC).  Indeed, the ICTY went a long way to unifying the differences between the treaty provisions governing international and non-international armed conflict (NIAC) as a matter of customary law.  This was also the historical view in the U.S., by scholars such as Winthrop, Lieber and Halleck, as well as the U.S. Supreme Court in its Civil War era cases (and U.S. practice in other NIAC’s in the late 19th and early 20th centuries). 

    I agree that the prior administration claimed the powers of international law without recognizing its restraints.  However, that does not mean it was required to recognize lawful combatant status in an enemy that did not observe the customary laws of war on the subject.  As you note, the recent ICRC report appears to support that approach.  That one may lawfully be targeted does not mean that they are lawfully participating in armed conflict or immune from punishment for doing so.  Indeed, the historical view in the U.S. was that even lawful belligerents could be punished in a Civil War for their acts against the lawful government.  As a matter of policy though, it was believed that such punishments should be limited to leaders of a movement, not “foot-soldiers.”  That states are the socio-political organizing elements of the world means that a monopoly on the use of force is still theirs (except to the extent that they have delegated that power to international organizations) and they may punish those that challenge this monopoly.  

    As to Kevin’s point about detention in NIAC, it is as fundamentally flawed as Marko’s earlier post.  As I explained in detail in response to Marko, this line of thought can not fully explain why CA3 regulates detention of individuals even though it does not authorize it.  (It is certainly not the case that IHL has “nothing to say” on the subject.)  For that matter, why can we use tanks in NAIC if IHL doesn’t authorize it?  How about machine guns?  How about any military attack.  None are affirmatively authorized by IHL.  They are only limited by it.

    The fundamental issue underlying this discussion is the scope of the concept of military necessity that arises in NIAC (and in U.S. law from the AUMF).  Military necessity refers very generally to those actions taken to achieve a designated military objective.  It is ahistorical to suggest that neither U.S. nor international law recognize a similar scope of military necessity (as basically including anything not prohibited by relevant international or domestic law) in both IAC and NIAC.  The progression of the regulation of NIAC in treaty law supports the view that military necessity in NIAC is broad and that preventive detention is recognized to be within it.  The reason that specific treaty provisions lag in NIAC is because states do not wish to so thoroughly limit their available options (a point made very clear in the commentary to the additional protocols with regard to Art. 6 of AP II).

    In that vein, the recent habeas decisions of the D.C. district courts intuitively recognize that the authority to use military force does include the power to detain those against whom military force was clearly authorized.  They adopted only semantic differences regarding how to describe those individuals.  No matter how many times Kevin and Marko repeat this argument, it will not change its fundamental flaw.  IHL does not authorize any military attack or prescribe other action that may be taken to defeat or neutralize an enemy, to include preventive detention.  It only places limits on the scope of the measures that a state may adopt to do so, and the GCs place some affirmative obligations to be observed with regard to both detained civilians and prisoners of war.

    Kevin’s discussion is also flawed with regard to the types of armed conflict at issue in Afghanistan.  I would encourage readers to survey the field of scholarship on this point.  It is nowhere near uniform, even among scholars who do more than dabble in this field when it is the issue of the day.  (I do not at all intend to imply Kevin is such a scholar.)

    The mere existence (and territorial scope, to the extent this is a relevant limitation) of any NIAC between the U.S. and al Qaeda is the main question relevant to this discussion.  Some have argued that the threshold requirements for an armed conflict between the U.S. and Hamdan never existed or do not now exist.  The Supreme Court did not adopt that view in Hamdi or Hamdan.  Additionally, the Supreme Court did not hold in Hamdan that the armed conflict only existed in Afghanistan as Kevin states.  It only limited its decision to Afghanistan because the territorial scope of the conflict beyond Afghanistan was not at issue.  Hamdan was captured there.  It does not appear that the D.C. district courts have done so in the recent habeas decisions either, though they find that the place of capture is relevant (not determinative so far as I can tell) to the status of an individual in relation to the AUMF and therefore the legailty of their continued detention.

    I also do not understand Kevin’s concerns with the administration’s position.  They clearly do intend to continue against al Qaeda under the armed conflict paradigm.  That has been clear.  Therefore, the fact that future “apprehension” and “detention” might occur is no real cause for concern.  Of course, “future detention” also refers to those currently detained and subject to continued detention in the future.  In other words, extended preventive detention of those who cannot be prosecuted is possible.  However, that does not delimit the scope of potential preventive detention to those currently detained or unable to be prosecuted.  The key question is whether to extend that detention indefinitely in the face of this conflict, or to place other substantive and/or procedural requirements on maintaining it given its potential duration.  I do not think the administration is being inconsistent, it is merely referring to one group of potential detainees more discretely.

    I am preparing for a vacation and may not be able to respond to any comments addressing mine here.  However, I will be happy to address things in the future.  This is the main focus of my current scholarship, which is now also my work for a J.S.D. from Columbia Law.  I have a thorough analysis of Supreme Court decisions regarding the scope of authority granted by the commander-in-chief power in the conduct of war (not its initiation) that I will be shopping around this fall.  It will provide more detailed support of the arguments I make here.

    Best to all,


  3. Regarding conspiracy – it may not be a substantive charge under the laws of war, but wouldn’t liability under joint criminal enterprise function as an analogue?

  4. “The President has made clear that military commissions are to be used only to prosecute law of war offenses.” The MCA says the same thing. However, there is no logical requirement for this restriction. During occupation, military courts apply local law in ordinary criminal cases like murder and rape.

    There are two detainees who the government claims threw hand grenades and killed US soldiers. If they lacked combatant privilege, this is ordinary murder, not a violation of the laws of war.

    The MCA also restricts military commissions to unlawful enemy combatants. Again, this is not based on law or tradition. Military commissions tried war criminals after WWII even when they were high ranking uniformed officers clearly qualifying as lawful combatants.

    One thing that astonishes me is how critics of the Military Commission system don’t bother to actually read the rulings made in the few commissions already held. For example, the presiding judge in the Hamdan MC ruled that “the laws of war” apply only to how soldiers behave in war. A civilian (such as Hamdan) cannot violate the laws of war even when he directly participates in combat.

    If anybody bothered to think about this, it means that nobody can be tried in a Military Commission for anything. First, Military Commissions can only try offenses against the laws of war. Second, they only have jurisdiction over unlawful enemy combatants to whom the laws of war do not apply. QED.

    Getting out of this logical hole should be one of the objectives of the current administration. Digging a deeper hole does not sound like progress.

    “individuals captured outside of Afghanistan, who are not engaged — as Hamdan held and as IHL scholars nearly uniformly agree — in an international armed conflict”
    The right to detain under the laws of war depends on the detainee’s military status (how and where he got into the enemy army) and not the location where he is captured. The first POW held by the US in WWII was captured while lying on a beach in Hawaii. Ensign Sakamaki’s two man sub had run aground and he had to swim to shore and then collapsed. Nobody imagined that there was a rule that someone could not be held as an enemy Japanese sailor unless he was captured on Japanese soil, so why today does someone imagine that Afghan Taliban soldiers can only be captured in Afghanistan.

    Of course, when enemy combatants wear uniforms and carry the required ID card, it is easy to prove they are enemy combatants. When the enemy does not follow international law, then proving they are enemy combatants becomes harder. The closer they are to a battlefield, the stronger the circumstantial evidence that they are part of the enemy armed force. Still, it is status as a soldier in the enemy army and not the location of capture that matters. If you can prove that someone is a Taliban soldier, you can take him into military custody even if you find him lying on a beach in Oahu (or trying to board a plane at JFK airport).

  5. I should clarify two things.

    (1)  I intended to convey that I do not at all believe Kevin only dabbles in this area of law because it is the issue of the day.  I hope that was clear but in case it wasn’t…

    (2)  I meant to say, in the second sentence of my seventh paragraph above, the armed conflict between the “U.S. and al Qaeda” not “U.S. and Hamdan.”

    My apologies for the other typos above as well…but my points of analysis should be clear enough in spite of them.


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