Bobby Chesney Responds to My Post

by Kevin Jon Heller

Bobby Chesney has graciously responded at Lawfare to my post about detention in non-international armed confilct (NIAC). Unfortunately, I think Chesney’s response not only misconstrues what Steve Vladeck and I have been arguing, but also demonstrates some important misconceptions about IHL.

To begin with, we need to understand exactly what we are arguing about. As Steve pointed out in one of his early posts, Sen. Lindsey Graham’s proposed “Terrorist Detention Review Reform Act would permit the government to detain without trial anyone who “has purposefully and materially supported hostilities against the United States or its coalition partners,” regardless of where that person is apprehended.  Steve’s criticism of the TDRRA focused on “stateside” detention — the detention of American citizens who are apprehended in the United States.  He argued that the rules of IHL applicable in NIAC do not authorize such a broad detention power.

I would not have framed the argument that way, because it assumes that IHL applies to such detention in the first place.  (More on that below.)  Regardless, Chesney and Wittes responded to Steve by claiming that “[i]nsofar as this is an argument that the law of war permits detention in this setting (i.e., non-international conflict) only as to persons who directly participate in hostilities, well, suffice to say that no U.S. court has yet accepted that position and that several of the district judges in the habeas litigation have rejected it.”  My post then addressed the claim that I believed was implicit in Chesney and Wittes’ response: namely, that the laws of war applicable in NIAC authorize the detention of at least some individuals who cannot be said to have directly participated in hostilities — i.e., those who are accused of at least some kinds of material support.  I argued that, although IHL detention rules in NIAC are unclear (and may not even exist), even the most generous reading of those rules would not authorize the detention of individuals whose material support for terrorism does not rise to the level of what we normally think of as direct participation in hostilities (DPH).

Chesney now says I misunderstood his and Wittes’ argument:

We did not claim that the laws of war are best read as affirmatively conferring detention authority in the material-support scenario, still less that they obviously do so (personally, I think the laws of war are agnostic on the question of the substantive grounds for detention in a non-international armed conflict (“NIAC”).  What we did argue is that courts have disagreed as to whether the AUMF already contains this authority–an admittedly minor point about which we were debating with Steve.

That is a misleading claim, as indicated by Chesney and Wittes’s response to Steve: “[i]nsofar as this is an argument that the law of war permits detention in this setting (i.e., non-international conflict) only as to persons who directly participate in hostilities, well, suffice to say that no U.S. court has yet accepted that position and that several of the district judges in the habeas litigation have rejected it.” That is a claim directed to what judges have said about IHL and detention in NIAC, not a claim directed to what judges have said about the AUMF. Indeed, Chesney admitted as much in a later response to Steve:

I take him to be arguing that the laws of war preclude detention in those circumstancesThere certainly are many who advocate both those positions, and perhaps the Supreme Court ultimately will adopt one or both of them.  Again, however, the judges in the meantime have divided on both points, with the most recent decisions in the D.C. Circuit and the Fourth Circuit cutting in the government’s favor.

To be clear, Chesney and Wittes are free to claim that IHL permits the stateside detention of individuals accused of material support because a few federal judges have taken that position.  (Although I’m baffled by their argument, made a number of times in response to Steve, that the TDRRA cannot be described as a radical because its detention power has not been uniformly rejected by the judiciary.)  They are also free to claim that IHL is irrelevant to the TDRRA because, as a matter of domestic law, the government is free to detain anyone it wants as long as it has Congressional authorization to do so.  But they should make clear which claim they are endorsing.

In any case, immediately after claiming that I “incorrectly attribute[d]” an IHL claim to them, Chesney then says they did, in fact, make a claim about IHL:

We did also have something separate to say about the laws of war in that prior post, though again it wasn’t the view that Heller attributes to us.  Specifically, we argued against the claim that the laws of war require the equivalent of the DPH standard (i.e., direct participation in hostilities) as a necessary condition for detention (in the NIAC setting or otherwise).

To recap: I claimed that Chesney and Wittes were arguing that IHL authorized the detention of individuals in NIAC whose material support for terrorism did not rise to the level of direct participation in hostilities; Chesney now says that he and Wittes were arguing that IHL did not limit the detention in NIAC to individuals whose material support for terrorism did not rise to the level of direct participation in hostilities.  That is a distinction without a difference — unless, of course, Chesney and Wittes do not believe that IHL applies to the TDRRA at all, in which case whether IHL authorizes its detention regime or imposes limits on it is irrelevant.

Again, Chesney and Wittes are free to argue that it’s irrelevant whether IHL in NIAC authorizes detaining individuals accused of materially supporting terrorism — that, in other  words, the TDRRA’s detention power is solely a creature of domestic law and is thus subject solely to international human-rights law.  But that does not seem to be what they want to do.  Instead, they appear want to make the argument that the TDRRA’s stateside detention regime is, in fact, consistent with the rules of IHL that apply in NIAC.

That argument, of course, requires them to establish two things:

[1] That IHL applies to individuals detained in the US on the ground that they are involved in a NIAC.
[2] That the rules of IHL in NIAC justify detaining individuals accused of material support for terrorism.

Chesney and Wittes have not yet addressed the first question.  There are only two possible answers: (1) the U.S. is involved in some amorphous global NIAC with al-Qaeda, so the rules of IHL in NIAC apply wherever anyone associated with al-Qaeda operates; or (2) the rules of IHL in NIAC apply to members of al-Qaeda located outside of the current NIACs in Afghanistan and Pakistan, because those individuals are either members of an “organized armed group” involved in one of those NIACs or, through their material support, can be considered to be directly participating in one of them. Which answer do Chesney and Wittes defend?  I think the first answer is ridiculous (and no IHL scholar outside of the U.S. has ever taken it seriously).  The second answer’s “membership” prong seems difficult to defend, because I don’t see how (for example) providing funds to a terrorist group makes you a member of that group.  (Were Irish-American financiers of the IRA “members” of the IRA that Britain could have detained or assassinated?)  The “DPH” prong of the second answer thus seems to me to be the only plausible explanation of how the rules of IHL in NIAC could apply to individuals in the U.S. accused of materially supporting terrorism.

Again, Chesney and Wittes simply avoid this question.  Indeed, Chesney doesn’t seem to understand that if you are going to invoke IHL to justify detention, IHL has to apply in the first place.  Hence this comment:

The DPH standard is of course the legal standard for targeting civilians with lethal force.  But no treaty instrument makes it a detention standard in either the IAC or NIAC setting, nor am I aware of evidence that states have employed it in that manner out of a sense of legal obligation so as to generate a customary norm on this point.

DPH is, of course, the standard for intentionally targeting civilians period, not simply with lethal force.  Regardless, the point is that, unless Chesney and Wittes believe that individuals in the U.S. who materially support terrorism can be considered members of the al-Qaeda groups operating in Afghanistan and Pakistan, IHL only applies to those individuals if they directly participate in hostilities there.  Hence the argument — which Chesney misunderstood — in my previous post about the importance of DPH.

The failure to recognize the importance of DPH to the applicability of IHL in NIAC is even more evident in this comment by Chesney:

Consider the situation in Iraq in, say, 2007.  Let’s say that there is an individual whom the U.S. and Iraqi governments believe is a key logistics figure in AQI or some other insurgent force, but who cannot be said to have personally participated, even at one step removed, in violent activity.  And let’s assume further that because of intimidation or otherwise, a prosecution in an Iraqi court just isn’t likely. Either “active participation” will have to be defined broadly to encompass this scenario, or else the active participation standard would seem to preclude the U.S. or Iraqi governments from taking the person into custody.

More simply put: the rules of IHL in NIAC should apply, according to Chesney, to someone who doesn’t satisfy the DPH standard (or, presumably, the higher membership standard) if a government doesn’t believe that its domestic law make his detention sufficiently easy.  It doesn’t take an IHL scholar to see the problems with that argument.  IHL applies only if conflict is sufficiently intense and organized to qualify as a NIAC.  Period.  There is no “weak domestic law” exception to that fundamental requirement.  And even if a NIAC exists, IHL applies to individuals located outside the battlefield only if they are members of an organization involved in that NIAC or are directly participating in hostilities there.

The real question, in short, is whether individuals in the U.S. accused solely of materially supporting terrorism can be considered members of al-Qaeda in Afghanistan or Pakistan (where there are NIACs to which the rules of IHL apply) or can be considered to be directly participating in those conflicts. I’m skeptical. I could probably be convinced that individuals who recruit individuals to fight in Afghanistan or Pakistan qualify.  But funders?  Members of the ICRC who train al-Qaeda in the rules of IHL?  Lawyers who write briefs on behalf of individuals accused of membership in al-Qaeda?  It’s not enough to claim, as Chesney does, that “we should exclude such unrealistic scenarios as the brief-writing lawyer” from the detention power in the TDRRA.  The fact remains that the Act does not exclude them.

4 Responses

  1. Heller continues to talk about “material support for terrorism” and even then confuses it with “material support for a terrorist organization”, a crime in US domestic law.  Chesney and the TDRRA talk instead about detaining someone who “has purposefully and materially supported hostilities against the United States or its coalition partners”. Hostilities may include military attacks on US soldiers that cannot be regarded as terrorism, and it may be carried out by a co-belligerent of Al Qaeda that does not engage in terrorist activity but only engages in military actions and therefore cannot be legitimately designated as a terrorist organization.

    Although Direct Participation in Hostilities is a standard for targeting civilians, DPH is also shorthand for the complete set of standards about who can and cannot be targeted under the laws of war. For example, uniformed members of an enemy army can be targeted at all times, unless they have taken themselves out of action by, for example, laying down their weapons and waiving a white flag. Members of the armed units of an non-state party to a non-international conflict can be targeted if they are engaged in continuous combat function, but if they leave that role and cease for a time to engage in combat function then they cannot be targeted while they have discontinued their combat related duties. Civilians can only be targeted while they directly participate in hostilities. A civilian who is at home today but yesterday was directly engaged in hostilities may not be targeted today.

    The ICRC guidelines on DPH are so clear that it is actually a bit silly to imagine that they also apply to detention. For example, since a uniformed enemy soldier who surrenders may not be targeted, claiming that the DPH rule governs who may be detained implied that enemy soldiers who surrender may not then be detained. The same problem applies with different time frames to the other cases. A member of an enemy armed unit who was engaged in continuous combat function, but who has temporarily given up his combat role to perform a different non combat task for a month before returning to combat may not be targeted under DPH, but it seems nonsensical to assert that he cannot be detained to prevent him from returning to his combat role. Similarly, a civilian who was engaged in combat yesterday may not be targeted today, but he can be detained as a security threat to US troops.

    In an IAC, the rules for the detention of Civilian Internees under the Fourth Geneva Convention are clearly unrelated to DPH. They must only be found to pose a security threat, and that evaluation must be done every six months.

    It makes sense that the rules for detaining people not meeting DPH standard may be different in an NIAC than they are in an IAC, but it is not obvious that they disappear entirely.

    As to the geographical scope of the NIAC, I think that much of it has been clarified in Friday’s DOJ brief in the al Aulaqi brief. Quoting excerpts from that brief:

    “the fact the United States’ armed conflict with al-Qaeda exists in one particular location does not mean that it cannot exist outside this geographic area—subject, of course, to applicable international law principles, including sovereignty and neutrality.”

    “a judicial decision as to whether or not an “armed conflict” exists where an enemy organization has a significant, organized presence and from which it has planned and launched attacks against the United States, would intrude on the judgment of the political branches, in consultation with each other and foreign states—an assessment that could fluctuate depending on future events.”

    Combined these two statements reject the false dichotomy presented in the post. The NIAC is not amorphously everywhere, but neither does it extend anywhere the parties to the conflict have fundraisers or other disorganized supporters. The conflict spreads by the establishment of significant organized armed forces planning attacks on the US or its allies, and there is no geographic constraint once that criteria is met, although military action against such an enemy may be limited based on sovereignty and neutrality of other states.

    So translate the DPH criteria and detention to a hypothetical on al-Aulaqi using the words of the Obama administration in the brief:

    “Anwar al-Aulaqi is a leader of AQAP”

    “AQAP is an organized armed group that is either part of al-Qaeda or, alternatively, is an organized associated force, or cobelligerent, of al-Qaeda that has directed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda”

    “Congress authorized the President to use necessary and appropriate military force against al-Qaeda, the Taliban and associated forces, AUMF, 115 Stat. 224, and the Executive Branch has determined that AQAP is an organization within the scope of this authorization, and that Anwar al-Aulaqi is a senior operational leader of AQAP.”

    Assume for the sake of argument that these statements are true and can be proven.

    Now for the hypothetical: Suppose al-Aulaqi decides to take a temporarly leave of absence from his combat duties and returns to the US to attend a friend’s wedding. Suppose he is captured at customs at a US airport attempting to enter the US. Admitting that under the rules of DPH, he may not be subject to lethal force having rendered himself to be hors de combat, are you now asserting that he cannot be detained by the military even if the US were able to prove beyond a reasonable doubt that he was an enemy military commander and planner (but asserted no criminal charges against him), simply because this is an NIAC and not an IAC?

    This brings into focus another linguistic disconnect between Heller and Chesney. Chesney talks about the Laws of War. Heller talks about IHL and seems to assume that it includes the laws of war, but then often assumes that the laws of war mean nothing except for certain specific treaties and rules (like DPH) intended to provide certain protections to “protected persons”.

    While some define IHL to include all IL about armed conflict, there are many aspects of war that are not covered by the written treaties and ICRC commentaries. For example, while the Geneva Conventions describe the treatment and protection of POWs, they kick in only after surrender. There is nothing in the Humanitarian part of IHL that deals with how an enemy surrenders. White flags, offering terms, the ceremonial surrender of a sword… All that stuff that Grant and Lee knew how to do at Appomattox Court House is no where covered in the Third Geneva Convention. So it is not surprising that rules that apply after surrender do not themselves authorize the surrender or detention. Nor did it matter to the Laws of War that Grant regarded this an a NIAC while Lee regarded it as an IAC.

    Everyone agrees that the Geneva Conventions provide less protection for members of armed units of a NIAC than are provided to the POWs of an IAC. That is what the discussion about Common Article 3 and Additional Protocol II is all about. However, differences in protection for prisoners in IAC and NIAC does not necessarily mean that the Laws of War authority to accept the surrender and detain an enemy soldier after combat are different. You are certainly free to try and make the argument, but you cannot simply assume that because the nature of the protection to detainees changes from IAC to NIAC that the authority to detain, which derives from an entirely different part of IL, necessarily changes at the same time.

  2. Of course, those statements are not true, because the US and al-Qaeda are not involved in a global NIAC.  And, of course, I specifically acknowledged that an individual who qualified as a member of an al-Qaeda group that is involved an actual NIAC could lawfully be detained. But hey, why split hairs?

  3. And by the way, Howard, if you want to do more than assume that the nature of the power to detain does not change from IAC to NIAC, feel free to make the argument.

  4. Again, I would have to cite the Korean War. At the time, there were no countries of North or South Korea. The Korean peninsula was divided into zones of occupation, and there was no international recognition of the local governments in either the US or USSR occupation zones. Yet when a non-international armed conflict developed between the zones, which then escalated to involve the United Nations in support of one party, nobody disputed that the conflict should be carried out according to the laws of war, and nobody doubted that captured DPRK and PLA soldiers should be treated as if they were POWs. Since this was a major war, since the enemy was not a recognized state party, and since the allied forces operated under the UN and not simply US authority, one would assume that someone would have noticed or commented if the allies had no authority to detain captured prisoners under Laws of War.

    There was also the NIAC expedition into Mexico to capture or kill Pancho Villa after he crossed into the US and attacked civilians and soldiers in New Mexico.

    There are a large number of terrible examples of NIAC in which no principles of IHL were ever applied. The US wars against native Americans, the concentration camps set up by the British during the Boer Wars, reprisals following the Boxer Rebellion. One reason where there is little precedent is that most NIACs end with the winner slaughtering the loser.

    Normally a NIAC is a conflict within a country between two parties. The non-state party is then subject to the municipal law of the state party. It is unusual, and I can only cite the two cases above (Korea, Villa) for a non-state party to trigger a NIAC with a second country by attacking the armed forces of that other country (except for Pirates, and that triggers an entirely different section o IL).

    Other than that, I cannot prove or disprove a proposition that has never been tested because it has never been raised or even imagined in all the conflicts to which the Laws of War apply. This is mostly a question of History and not Law. Modern IHL is a creature of the 20th Century, but the Laws of War go back long before the US even existed.

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