Brennan, Detention and Congress

by Deborah Pearlstein

In addition to Brennan’s fascinating remarks on targeting, etc. last night, which Marty reprints below, he took occasion to address the legislation now pending in Congress that aims to guide (to use a word) U.S. terrorism detention operations. For those who lost track over the summer, when last we left off, both houses of Congress were considering bills that would (variously described) authorize/reauthorize/clarify/expand U.S. authority under domestic law to engage in detention (and to some extent targeting) operations in its ongoing counterterrorism efforts. Among key questions, what the new law would do on the question of who may be detained militarily in these operations.

On this question, here’s the draft language from the Senate version, section 1031(b)(2): “A person who was a part of or substantially supported al-Qaeda, the Taliban, 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 such hostilities in aid of such enemy forces.” I asked Brennan last night if he wished to address the administration’s view of this provision, as well as the provision in the draft bill that would mandate military custody for terrorist suspects. While I thought Brennan was very clear in his response as to the administration’s strong rejection of the mandatory military custody provision (which he called a “nonstarter”), his most substantive comment on the re/authorization language was to indicate that he had never felt in his position that the United States lacked the power to do things he felt the administration needed to be able to do in the interest of national security.

So what to make of the draft language? It seems critical to look at the language from both the 5-foot level and the 5,000-foot level. That is, what does this mean for future detainees exactly, and what does this mean for the United States’ counterterrorism efforts more broadly? First, from 5 feet. What if anything does this do to the standard now prevailing in the D.C. Circuit for the Guantanamo detainees? In my view, while it does nothing to clarify matters – leaving the definition again too vague to be helpful – and for that reason potentially much to confuse current litigation. The D.C. Circuit has been working with a definition, the product of Congress’ existing authorization, the executive’s suggestion and the court’s conclusion, to this effect: “[A]ny person subject to a military commission trial is also subject to detention, and that category of persons includes those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.” Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010).

Is the new, section 1031 definition broader or narrower than the current D.C. Circuit definition? It will be eventually, again, for the courts to decide, but I read it as, if anything, narrower. Among the failings of the Al Bihani definition, I’d thought, was the “purposefully and materially support” piece. It essentially made detainable under the laws of war (as incorporated by the domestic authorizing statute) anyone who was even marginally prosecutable under the criminal law. And I’d never been able to find any support in international law for the proposition that armed conflict detention and/or targeting authority extended broadly to “material supporters.” The new definition eschews the problematic material support language, instead exemplifying the kind of individuals detainable under the law as including those who have “committed a belligerent act or [have] directly supported such hostilities.” I know no one who disputes the detainability of those who actually commit a belligerent act in the context of armed conflict. I don’t know exactly what “directly support[] hostilities” means (and I dare anyone to argue that the definition of this phrase is made clear, or any in any way clarified, by the present bill), but at least it harkens to a recognizable (if admittedly also unsettled) standard in international law by invoking the idea that participation must be “direct” in some sense. How’s that for an endorsement?

Now back up to the 5,000-foot level. Is this definition the “right” definition as a matter of U.S. detention policy? Is now the “right” time to be legislating on this question? The executive branch has taken the position that it does not need new/clarified authority in this realm. Various administration officials have also made statements in recent months – as Brennan did again last night – that they have Al Qaeda “on the ropes” (as he put it). That cooperative counterterrorism activities with international allies – allies that have never seemed crazy about the U.S. approach to detention operations – are “a key to our national defense” (Brennan). And then there is the still unfolding Arab spring, which seems the ideological antithesis of the world Al Qaeda sought. In other words, one might imagine, it is a time to focus on approaches that exploit, not threaten to undermine, our strategic gains.

At same time, there is the unavoidable reality that this legislation is being debated against the backdrop of a vigorous semi-public discussion over the scope and propriety of U.S. targeting operations in Yemen and Somalia. See The Times here. More significant than the location of these attacks is their apparent direction at groups (AQAP and al Shabbab, respectively) less clearly connected with Al Qaeda and the enemies otherwise specified by the original post-9/11 Authorization for Use of Military Force. Brennan is right that if one accepts as a matter of international law that the United States is in an “armed conflict” with Al Qaeda, belligerents in that conflict are targetable anywhere (provided targeting is otherwise in compliance with various other international law constraints like proportionality, etc.). But at a time when we seem to be winning the “war” authorized in 2001, will the new legislation be perceived (by our allies, our courts, or others) as declaring a new war against new, if related, enemies today? This remains a concern. I am somewhat comforted by the language (at least in the draft I have seen) indicating that the new detention authority applies only to those “captured in the course of hostilities authorized by the Authorization for Use of Military Force [of 2001].” In other words, that it doesn’t mean to launch a new war, against a new set of enemies in the Arab world. But a decade into that 2001 conflict, at a time when the courts have made strides finally in untangling who may be detained, and when the administration has promised no new detainees will be brought to Guantanamo (also from Brennan last night) – when, after all this, we finally seem to be winning – it seems an inopportune time at best for Congress finally to decide it can’t wait a moment longer to legislate on a question 10+ years in the making.

There is something, after all, to the wisdom that the better part of valor is discretion.

5 Responses

  1. Perhaps it was the juxtaposition of the UNCLOS and AUMF/Detention posts, but I see kindred arguments in favor of both.
    Although the U.S. Navy asserts that the navigational regime under UNCLOS reflects Customary International Law (CIL), nevertheless Iran (especially the prickly Iranian Revolutionary Guard Corps Navy) persists in harassing U.S. Navy ships engaged in transit passage through the Strait of Hormuz into the Arabian Gulf (perhaps to demonstrate Iran’s persistent objection to U.S. assertions).  Becoming a State Party to UNCLOS would put U.S. ships on a firmer footing under international treaty law, rather than having to rely on the slipperier concept of CIL.
    Similarly, although Professor Pearlstein asserts that “any person subject to a military commission trial is also subject to detention,” (citing Al-Bihani) and “I know no one who disputes the detainability of those who actually commit a belligerent act in the context of armed conflict,” renewing the AUMF would put (in my humble opinion) both the counterterrorism mission and Military Commissions on a firmer footing.  What detention authority exists for persons captured (or detained) in Iraq after the Security Agreement expires, or for persons captured neither in Iraq nor in Afghanistan (e.g. Warsame), or for persons not connected with al Qaeda (e.g. Daqduq)?  Setting aside international law concerns (for the moment), military commissions remain a domestic prosecution, for which a solid jurisdictional basis would be helpful.
    Kudos to the Obama Administration for attempting to stay on the right side of International Law (which is a refreshing change).  Nevertheless, if the U.S. continues its worldwide counterterrorism mission after the AUMFs expire in Iraq and Afghanistan, then detention and prosecution authority should explicitly mirror that broad scope.  The U.S. should be transparent and consistent in its approach to terrorism.  Sometimes, the better part of valor is integrity . . .

  2. Response…
    With respec to military commissions, there are several reasons why the Supreme court’s recognitions in Hamdan play havoc with their propriety — no ad hoc, special tribunals under GC3 (only regularly constituted tribunals), no law of war commission jurisdiction over crimes that are not part of the laws of war, no “stinky” procedures (a Texas phrase). I don’t see how it is possible to have new legislation (or the present 2009 legislation) fit within the “regularly constituted” test recognzed by the Court in Hamdan because, obviously, such post hoc tribunals are special and were not regularly constituted.
    Obama’s military commissions are still unlawful and without jurisdiciton in view of recognitions in Hamdan.

  3. Response…
    p.s., on another point, with respect to targetigs, “directly support” is certainly different than “direct participation in” hostilities (DPH), which is the legal standard — and so is “materially suppot.”  Isn’t this an attempt to expand away from the DPH test to reach persons who are not DPH but who merely directly or materially “support”?  When one considers U.S. legislation concerning “material support” for FTOs (foreign terrorist organizations) and one considers the categories of material support that are listed in the legislation, one can understand that such a list of activities is far beyond the reach of the DPH test under international law — and as one federal judge remarked, such could reach a little old lady who sent a check to an FTO — or a lawyer who provides “services” to an FTO or member of an FTO–egads!  See 118 Stat. 3638, amending section 2339A(b) (“material support or resources means …”).
       With respect to detention, the D.C. Cir. and draft approaches are inconsistent with GC arts. 5, 42-43, and 78 — which relate to the need for reasonable necessity for detention of persons who are, for example, “definitely suspected of or engaged in activities hostile to the security of the State” — not supported such, but engaged in such.  Of course, the human rights standard is far less limiting, requiring merely that detention not be “arbitrary.”

  4. Deborah, no disrespect (I very much appreciate your work), but you entirely miss the real important points here, which are at 50,000 ft. Brennan and the administration think they can shoot at whoever they like, as long as the targets can be said to be Islamic extremists and where they are is a weak state. (unable or unwilling…) Almost strategic ambiguity on AUMF is a bonus for them, and as long as the current or future language preserves that, Obama will be happy.

    The other actor here, the D.C. Circuit, has made abundantly clear that they are pressing the scope of AUMF-AT farther than anyone else. (International law, you say? “Ha” says the DC Circuit) Until the Supremes step in, given the range of debate that is politically feasible today, the AUMF language makes no difference to what the functional definition of detention is. Which means of targeting as well.

  5. I am very eager to hear what you thought of the little joke that Brennan made at the end of his response to your question: “with covert action, that ‘c’ falls off pretty quickly” chuckles are heard “and things come out in the papers, because, unfortunately, there are leaks.”

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