The NDAA: The Good, the Bad, and the Laws of War–Part II

The NDAA: The Good, the Bad, and the Laws of War–Part II

By Marty Lederman and Steve Vladeck*

Section 1021 of the NDAA and the Laws of War

In our companion post, we explained that section 1021 of the NDAA will not have the dramatic effects that many critics have predicted–in particular, that it will not affect the unresolved question of whether the 2001 Authorization for Use of Military Force (AUMF) would authorize a future President to place a U.S citizen or resident who is apprehended in the United States in long-term military detention. (The issue is moot during President Obama’s tenure, since “it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts, as they should be,” and that “when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.”  As the President reiterated today, “my Administration will not authorize the indefinite military detention without trial of American citizens.  Indeed, I believe that doing so would break with our most important traditions and values as a Nation.”)

In this post, we will address David Cole’s concerns about the relationship between the AUMF detention authority and the laws of war. This has the potential to be a very important question—indeed, it’s the one important substantive issue that has engendered an interpretive dispute among the judges on the D.C. Circuit.  In short, and as we explain in more detail below, the Obama Administration has advanced the view that the AUMF detention authority should be construed as limited and informed by the laws of war—a reading that is supported by the rulings of most habeas judges.  But two judges on the court of appeals have insisted to the contrary that it would be “both inapposite and inadvisable” for courts to look to the laws of war when construing the Executive’s detention authority under the AUMF—a view that has engendered some confusion in recent habeas cases.

How does section 1021 of the NDAA affect this dispute? By its, terms, section 1021 is not “intended to limit or expand the authority of the President or the scope of the [AUMF].”  David Cole worries, however, that perhaps section 1021 will be seen as authorizing detention of individuals–particularly those determined to have “substantially supported” al Qaeda, the Taliban, or their co-belligerent forces–in circumstances inconsistent with longstanding law-of-war principles. We think those fears are unwarranted; indeed, in our view, section 1021 points to a very different resolution of the lingering question. As we will explain, section 1021, although it does not “limit or expand” the President’s detention authority, is in at least this one respect best read to clarify Congress’s understanding of how the existing AUMF authority should be construed—namely, as limited and informed by the laws of war, as the governing opinion in Hamdi instructs and as the Executive branch has been arguing since 2009.

A bit of background is in order before looking at how Congress addresses this question in the NDAA:

Hamdi v. Rumsfeld

In her governing plurality opinion in Hamdi, Justice O’Connor held that because the detention of enemy forces “for the duration of the particular conflict in which they were captured,” 542 U.S. at 518, and for the purpose of preventing them “from returning to the field of battle and taking up arms once again,” id., is so fundamental and accepted an incident to war, it is fair to conclude it is an exercise of the “necessary and appropriate force” the AUMF authorized the President to use.  This understanding, she explained, “is based on longstanding law-of-war principles.”  Id. at 521.  But Justice O’Connor further explained that this detention authority was cabined by those law-of-war principles, too.  For example, she wrote that “[i]t is a clearly established principle of the law of war that detention may last no longer than active hostilities.”  Id. at 520 (emphasis added).  Moreover, in rebuking a claim put forward by the Solicitor General, she wrote that “we agree that indefinite detention for the purpose of interrogation is not authorized,” id. at 521—presumably because there was no established predicate for such detention in the laws and practices of war.  She further opined that the plurality’s understanding about the authority to detain “for the duration of the relevant conflict, . . . based on longstanding law-of-war principles,” might “unravel” if “the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war.”  Id. As Judge Williams of the Court of Appeals for the D.C. Circuit later explained in the al-Bihani case (see below), the Hamdi plurality thus “answered Hamdi’s concern about indefinite duration by saying that the detention authority recognized under the law of war, and thus implicitly conferred by the AUMF, was subject to a limit similarly recognized by the law of war” (emphasis in original).  See also Hamdi, 542 U.S. at 549-551 (Souter, J., joined by Ginsburg, J., concurring in part, dissenting in part and concurring in the judgment) (government could not rely upon the AUMF to supersede an earlier statute limiting detention where the government was not acting in accord with the laws of war).

The Obama Administration interpretation of the AUMF

The Department of Justice’s March 13, 2009 habeas brief argued that “[t]he detention authority conferred by the AUMF is necessarily informed by principles of the laws of war,” citing the governing opinion in Hamdi.  This raised a puzzle, however, because the laws of war with respect to a noninternational armed conflict (such as the U.S. conflict with al Qaeda) are not as well established in some respects—including as to the question of who may be detained—as the treaty-based and customary laws and norms that govern international (i.e., state-to-state) armed conflicts.  As the DOJ brief explained, the laws of war “have evolved primarily in the context of international armed conflicts between the armed forces of nation states.  This body of law, however, is less well codified with respect to our current, novel type of armed conflict against armed groups such as al-Qaida and the Taliban.  Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict.”  (This suggestion that law-of-war principles for noninternational conflicts be drawn from the laws that apply to more well-established types of conflicts is not unprecedented in American history.  In the famous Lieber Code, which Lincoln adopted for the conduct of union forces in the Civil War, Francis Lieber derived his principles from those that applied in international armed conflicts.  Lincoln insisted that the union army abide by them in a civil war, too.)

Thus, the Department explained in its March 13 brief, “[t]he President . . . has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.”  As the brief went on to argue, this can include not only persons who are part of such armed forces, but also some persons who “substantially support” those forces.  However, “it is neither possible nor advisable to attempt to identify, in the abstract, the precise nature and degree of ‘substantial support,’ or the precise characteristics of ‘associated forces,’ that are or would be sufficient to bring persons and organizations within the foregoing framework . . . .  [T]he 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. Accordingly, 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.”  See also Harold Koh’s address to the Annual Meeting of the American Society of International Law in March 2010 (“[T]his Administration has expressly acknowledged that international law informs the scope of our detention authority.  Both in our internal decisions about specific Guantanamo detainees, and before the courts in habeas cases, we have interpreted the scope of detention authority authorized by Congress in the AUMF as informed by the laws of war.”) (emphasis in original).

The Counterargument of Judges Brown and Kavanaugh

In a 2010 case, al-Bihani v. Obama, a panel of the D.C. Circuit split 2-1 on the question of whether the laws of war should inform interpretation of the AUMF detention authority.  In the majority opinion, Judges Brown, joined by Judge Kavanaugh, argued not only that the laws of war should not inform interpretation of the AUMF’s limits, but even that the AUMF should not be construed to avoid authorizing violations of that body of international law:  “[W]hile the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks,” Judge Brown wrote, “their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.”  With the laws of war put to the side, the al-Bihani majority looked to a very different (and, we would argue, inapposite) source—the jurisdictional provision of the Military Commissions Act of 2009—for guidance on how to construe the scope of the detention authority under the 2001 AUMF.  Because the MCA authorized the military trial of persons who “purposefully and materially supported hostilities against the United States or its co-belligerents,” Judge Brown reasoned, the government’s detention authority under the AUMF “logically” must “cover[] a category of persons no narrower than is covered by its military commission authority.”

As one of us has explained, there are at least two problems with this argument:  First, it doesn’t follow logically that those who can lawfully be tried by a military commission are a subset of those who can be lawfully detained without trial—the two categories overlap but are not coterminous.  For example, persons who are not detainable for the duration of hostilities can nevertheless commit offenses against the laws of war triable by commissions; and conversely, as in all conflicts, belligerent forces who have not committed any offenses under the laws of war can be detained for purposes of incapacitation while hostilities are ongoing.  Second, and perhaps more importantly, specific language in the 2009 MCA conference report explains that the statute’s jurisdictional definition of who may be tried, on which Judge Brown relied, “is included for the purpose of establishing persons subject to trial by military commission in accordance with section 948c, of title 10, United States Code, and is not intended to address the scope of the authority of the United States to detain individuals in accordance with the laws of war or for any other purpose.”

The third judge on the panel, Judge Williams, agreed that al-Bihani was detainable under the AUMF, but took sharp issue with his colleagues’ abandonment of the laws of war as a tool of construction.  “[I]t seems improbable,” he reasoned by illustration, “that in authorizing the use of all ‘necessary and appropriate force’ Congress could have contemplated employment of methods clearly condemned by international law.”  (It is worth noting that this was hardly a modern innovation of Justice O’Connor’s and Judge Williams’s own creation.  To the contrary, for much if not all of the nation’s history, the consensus view of the three branches was that the laws of war inform and limit the President’s conduct of military operations in wartime, including when he is acting pursuant to a congressional declaration of war or statutory authorization.  Indeed, that was even one of the few points of agreement between Hamilton and Madison in their Pacificus/Helvidius exchange.  As Justice Story explained in 1814, “when the legislative authority . . . has declared war in its most unlimited manner, the executive authority, to whom the execution of the war is confided, is bound to carry it into effect.  He has a discretion vested in him, as to the manner and extent; but he cannot lawfully transcend the rules of warfare established among civilized nations.  He cannot lawfully exercise powers or authorize proceedings which the civilized world repudiates and disclaims” (emphasis added).  Brown v. United States, 12 U.S. (8 Cranch) 110, 153 (1814) (Story, J., dissenting).  See generally Barron & Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 Harv. L. Rev. at 952-53 & n.16, 994-95 & nn. 196, 198.)

Al-Bihani petitioned for en banc review.  In response, the United States argued that although al-Bihani was detainable as part of an enemy force, the court of appeals had been mistaken on the international law question:

Al-Bihani cites to the panel’s more general statements that the laws of war do not limit the President’s authority under the AUMF.  See 590 F.3d at 871 (the “premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war * * * is mistaken”).  The Government agrees that this broad statement does not properly reflect the state of the law.  As it announced on March 13, 2009, the Government interprets its detention authority under the AUMF to be informed by the laws of war.  That interpretation is consistent with longstanding Supreme Court precedent that, generally, statutes should be construed, if possible, as consistent with international law.  See, e.g., Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804) (“an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains”); see also MacLeod v. United States, 229 U.S. 416, 434 (1913) (“The statute should be construed in the light of the purpose of the government to act within the limitation of the principles of international law”); . . . .  Notably, in Hamdi, the plurality applied this approach specifically to the AUMF.  The plurality discussed the Third Geneva Convention and other law-of-war sources when addressing detention authority under the AUMF and explained: “we understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ [in the AUMF] to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.”  542 U.S. at 520-521 (emphasis added).  Consistent with Hamdi, the United States interprets the detention authority granted by the AUMF, as informed by the laws of war.

The full court denied review, but the other seven active judges on the court took the remarkable step of writing collectively to strip the panel’s holding on international law of any precedential force:  “We decline to en banc this case to determine the role of international law-of-war principles in interpreting the AUMF because, as the various opinions issued in the case indicate, the panel’s discussion of that question is not necessary to the disposition of the merits.”  Judges Brown and Kavanaugh wrote opinions totaling over 100 pages in which they criticized the rest of the court’s treatment of the law-of-war question, and reasserted in even stronger terms their views that the AUMF should not be construed as informed by the laws of war—indeed, that in construing the AUMF courts should not even apply the Charming Betsy canon, which counsels courts, where fairly possible, to construe ambiguous statutes so as not to conflict with international law.  Judge Kavanaugh argued, in particular, that the laws of war should be used as a one-way ratchet when it comes to presidential authority to use “necessary and appropriate” force:  “I do not agree . . . with the inference drawn by Professors Bradley and Goldsmith—and adopted by Judge Williams—that if ‘the international laws of war can inform the powers that Congress has implicitly granted to the President in the AUMF, they logically can inform the boundaries of such powers.’”  619 F.3d at 44 n.23 (quoting Bradley & Goldsmith, 118 Harv. L. Rev. at 2094); see also id. at 43 (arguing that the traditional, “fundamental incident[s] of waging war” to which Justice O’Connor referred in Hamdi established only the “minimum” tools and methods the AUMF authorizes the President to use).  Judge Kavanaugh singled out use-of-force authorizations such as the AUMF as singularly inappropriate candidates for application of the Charming Betsy canon.  Id. at 38-41.

Developments After al-Bihani

Because Judge Brown’s resort to the MCA “purposeful and material support” standard for detention in al-Bihani was untethered to any notion of which civilian supporters can be detained in a traditional armed conflict, consistent with the laws of war, it was not clear what would become of that “purposeful and material support” standard—and the proposed abandonment of the laws of war as an interpretive guide—after the full court had signaled that the international-law analysis of her panel opinion was dicta.  The court of appeals’ subsequent, minimal treatment of the issue has sent mixed signals.

In one case decided on February 15th of this year, Hatim v. Gates, a panel of the court of appeals remanded the case to the district court to consider, inter alia, application of the “purposeful and material support” standard articulated in al-Bihani—without any mention of the laws of war.  Exactly one week later, however, a different panel remanded a case with instructions for the district court to consider whether the detainee was “permanently and exclusively engaged as a medic,” a status that would be relevant in determining detainability under Article 24 of the First Geneva Convention.  Warafi v. Obama, 409 Fed. Appx. 360.  Compare al-Bihani, 619 F.3d at 20-21 (Kavanaugh, J., concurring in denial of rehearing en banc) (arguing that the Geneva Conventions should not bear upon construing the AUMF’s detention authority).

Within the past month, the United States has filed two petition-stage briefs in the Supreme Court taking issue with the al-Bihani panel’s view of the relevance of the laws of war in construing the AUMF’s detention authority.  In al-Bihani itself, No. 10-1383 (following remand), the U.S. told the Court that it “disagrees” with the “inapposite and inadvisable” statements in Judge Brown’s opinion, and that “[l]aw-of-war principles do properly inform the construction of the AUMF, see Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality opinion), and thus the understanding of what actions are ‘necessary and appropriate’ for the President to undertake in waging war against al-Qaida.”  The government added that “[s]ince al-Bihani, the court of appeals and the district court have consistently applied the detention standard articulated by the government, which is informed by and consistent with the laws of war,” citing Warafi as an example.  The government filed a brief with a similar explanation of its views on the law of war and the AUMF just two weeks ago, in Uthman v. Obama, No. 11-413.

How Does Subtitle D of the NDAA Deal with the Law-of-War Question?

Section 1021(c)(1) of the NDAA specifically refers to the military detention at issue as “[d]etention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.”  Section 1024(b) likewise refers to “long-term detention under the law of war pursuant to the Authorization for Use of Military Force.”  And section 1023(b)(1), discussing the President’s “periodic review process” for GTMO detainees, refers to the detainee’s “law of war detention,” in a provision plainly intended to track a similar provision in the President’s executive order on the subject, see E.O. 13567, sec. 8 (Mar. 7, 2011).  That executive order, consistent with the Administration’s consistently stated views, in turn defines “law of war detention” to mean “detention authorized by the Congress under the AUMF, as informed by the laws of war.”  Id. sec. 9(a).  Even under Judge Kavanaugh’s analysis, these statutory references to “law of war” detention should be sufficient to clarify Congress’s intent that the AUMF authority be construed with reference to that body of international law.  See 619 F.3d at 25 (deeming it “critically important” that the AUMF makes no reference to international law, in contrast to “many statutes—including war-related statutes—that expressly refer to international law”); id. at 18 n.5 (arguing that the Supreme Court’s construction of statutes in light of the laws of war in Quirin “supports, rather than undermines, the framework outlined in this opinion” because “[t]hat case involved two statutes (Articles of War 12 and 15) that expressly referenced and thereby incorporated the ‘law of war’”) (emphasis in original).

Moreover, in the definition of “covered person” in section 1021, Congress did not opt for the MCA “purposeful and material support” formulation that Judges Brown and Kavanaugh embraced—which does not appear in the statute or (as far as we can tell) in its legislative history—but instead adopted the Administration’s “substantial support” formulation from its March 13, 2009 brief, a brief that (as explained above) emphasized that the laws of war inform the scope of the government’s detention power and that explained that in order to determine whether an individual is detainable, including as a “supporter,” it may be necessary to look to permissible detention practices that would be “appropriately analogous . . . in a traditional international armed conflict.”

Congress’s confirmation in the text of the NDAA that the AUMF detention authority it is “affirm[ing]” is “law of war” detention is bolstered by the legislative history, as well, which is replete with references to military detention “under the law of war.”  Compare al-Bihani, 619 F.3d at 26-28 (Kavanaugh, J., concurring in denial of rehearing en banc) (emphasizing the absence of references to international law in floor debates preceding enactment of the AUMF).  For example, in a colloquy on the Senate floor on November 17th, Senator Graham (one of the principal proponents of the detainee provisions) said:  “Let’s talk about indefinite detention and what it means. . . . The Bush administration has had prisoners held at Guantanamo Bay for years now who have not been prosecuted. They are held under the law of war.”  Senator Levin responded:  “That is correct.”  157 Cong. Rec. S7670.  A short time later, Senator Graham said this with reference to specific reference to section 1021 (then designated 1031):  “Section 1031 is a congressional statement of authority of already existing law.  It reaffirms the fact this body believes al-Qaida and affiliated groups are a military threat to the United States and they can be held under the law of war indefinitely to make sure we find out what they are up to; and they can be questioned in a humane manner consistent with the law of war.”  Id. at S7956 (Nov. 29); accord id. at S8662 (Dec. 15) (Sen. Graham) (“The authorization to use military force passed by the Congress right after the attacks against this Nation designates al-Qaida as a military threat, not a common criminal threat, so we apply the law of war.”); id. at S.8663 (Sen. Graham) (“The key fact is, no one is held as an enemy combatant without judicial review.  Once you are determined to be an enemy combatant, then we are going to apply the law of war, as we have for 200 years. . . .  Finally, after 10 years, the Congress of the United States, through this legislation, is going to make the simple statement, simple proposition that under the law of war, you can be held as an enemy combatant indefinitely to protect this Nation.”).  Senators McCain, Lieberman and Sessions made similar remarks, reflecting the apparently consensus view that military detention until the end of the conflict is detention governed by the law of war.  See id. at S7942 (Nov. 29) (Sen. McCain) (“When [the GTMO detainees] are enemy combatants, then they are subject to the rules and the laws of war.”); id. at S7954 (Nov. 29) (Sen. Lieberman) (“A nation at war that seizes those who have declared themselves to be part of enemy forces and have attempted to attack the American people, or America, should be treated as enemy combatants, as prisoners of war, according to the law of war. To me, that is a matter of principle.”); id. at S8113 (Dec. 1) (Sen. Sessions) (referring to an amendment of his, later defeated, “which would clarify what I believe is existing law that the President has authority to continue to detain an enemy combatant under the law of war”).  Although we have not reviewed each and every snippet of the months-long legislative history, we are not aware of any member of Congress expressing a contrary view.

The legislative history thus complements the text of section 1021:  Both reflect a view of the current Congress that the detention authority conferred by the AUMF, as “affirmed” by the NDAA, must be understood with reference to the laws of war.  Importantly, this construction should govern not only habeas cases going forward, but also the detention practices of future administrations.  (President Obama reaffirmed today that “[m]y Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.”)

If this is correct, what would it mean with respect to the question David Cole raised concerning detention of “substantial supporters” of al Qaeda and other enemy forces? We do not think section 1022 is appropriately interpreted to “affirm” an authority to militarily detain, until the end of hostilities, each and every person who has in some colloquial sense “substantially supported” al Qaeda or the Taliban.  If that were the case, then section 1021 truly would “expand” presidential detention authority to encompass something different from, and broader than, any “law of war detention” authority the Executive and the courts have thus far asserted or recognized–a result Congress disclaims in the words of section 1021 itself.  That is not, we think, a proper construction of section 1021.  As explained above, section 1021 reflects Congress’s understanding that the AUMF authorizes “law of war detention,” and it invokes the very “framework” DOJ proposed in 2009–not something much broader than that, let alone an authority (like Judge Brown’s “purposeful and material support”) untethered to the laws of war.  (The legislative history, for what it is worth, also contains numerous approving references to Justice O’Connor’s opinion in Hamdi, from which the DOJ framework derives.)  Nor is there any indication that Congress intended to abandon the important explication DOJ offered for that framework, namely, that “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,” such that “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.” (Indeed, the Armed Services Committee Report accompanying the original House bill, referring to language in that bill that also adopted the language of the DOJ March 13th detention standard, explained that “[t]he committee supports the Executive Branch’s interpretation of the Authorization for Use of Military Force, as it was described in a March 13, 2009, filing before the U.S. District Court for the District of Columbia. While this affirmation is not intended to limit or alter the President’s existing authority pursuant to the Authorization for Use of Military Force, the Executive Branch’s March 13, 2009, interpretation remains consistent with the scope of the authorities provided by Congress.”)

Another way to approach the same question:  Section 1021 would authorize the military detention of at least some persons who “substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”  The adverb “substantially,” however, is not defined.  In construing what forms of “support” to al Qaeda would be “substantial,” and thereby warrant military detention, we think it would not be appropriate merely to apply some sort of quantitative metric, particularly if that results in a detention practice that has not historically been viewed as “a fundamental incident of waging war.”  (Hamdi.)  There is no reason to think that Congress has authorized the President to engage in detention practices that are so untethered to historical precedents and “longstanding law-of-war principles.”  To the contrary, as we have explained above, we think it is fair to assume that Congress has now ratified DOJ’s understanding that in construing the AUMF”s detention authority, it may be necessary to look to permissible detention practices that would be “appropriately analogous . . . in a traditional international armed conflict.”

OK, but if we’re right about that, the question still remains:  What types of “support” to al Qaeda would justify military detention, in light of “longstanding law-of-war principles”?  The habeas courts have not yet had to analyze such questions, because they have resolved each case thus far based upon whether the detainee in question was “part of” enemy forces covered by the AUMF.  It is possible, however, to hazard a bit of speculation on how courts might view at least a handful of such cases if they were ever to be adjudicated.  For example, the March 13th DOJ brief itself stated that those who provide unwitting or insignificant support to the organizations identified in the AUMF are not subject to the AUMF detention authority.  And there likely are significant detention limits with respect to persons who provide medical support to enemy forces while “permanently and exclusively engaged as a medic,” see Warafi (discussed above), since such limits traditionally apply to such persons (indeed, even if they are part of an enemy force) in an international armed conflict, under article 24 of the First Geneva Convention and article 33 of the Third Geneva Convention.  On the other hand, perhaps substantial supporters of enemy forces who are apprehended while accompanying such forces can be detained on roughly the same terms as the forces themselves, just as they can be in an international conflict.  Cf. Third Geneva Convention, art. 4(4).  And Ryan Goodman has suggested that perhaps the AUMF could be construed to permit the U.S. to detain, in an internment capacity, civilians whose support for al Qaeda makes such detention “absolutely necessary,” or for “imperative reasons of security,” akin to the permissible detention of protected civilians in international conflicts under articles 42 and 78 of the Fourth Geneva Convention.  (As Goodman notes, the U.S. used such an internment option in the war in Iraq.)

These speculations hardly cover the waterfront of potential “supporters,” of course.  Thus, for the most part, and as DOJ argued, the “contours” of the “substantial support” basis for detention would have to be developed by the Executive and by the habeas courts in discrete application to concrete facts in individual cases, if there ever are any; and if such cases arise, they “may require the identification and analysis of various analogues from traditional international armed conflicts.”  (The same is true with respect to identifying the “associated forces,” or co-belligerent forces, of al Qaeda and the Taliban to which section 1021 refers.  See, e.g., Hamlily v. Obama, 616 F. Supp. 2d 63, 74-75 & n.17 (D.D.C. 2009) (agreeing with the government that “associated forces” in the DOJ March 13th standard means “‘co-belligerents’ as that term is understood under the law of war,” i.e., a “‘fully fledged belligerent fighting in association with one or more belligerent powers,’” and does not include organizations that “merely share an abstract philosophy or even a common purpose with al Qaeda—there must be an actual association in the current conflict with al Qaeda or the Taliban”).)  Although there may well be some uncertainty and disagreement about how that approach cashes out in individual cases, the larger point going forward is the central role that such law-of-war analysis should play, in marked contrast to the views of Judges Brown and Kavanaugh, when the Executive and the courts construe the detention authority the AUMF confers upon the President.

[*DISCLOSURE:  Marty Lederman worked at the Department of Justice when some of the briefs discussed herein were filed, and Steve Vladeck represented amici in some of the cases discussed.  The views expressed herein, however, are only their own and do not necessarily reflect the views of their former employer and clients.]

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Benjamin Davis
Benjamin Davis

It is very difficult to take any comfort from these attempts to reassure us. The NDAA appears to expand the definition of “covered persons” as compared to the AUMF of 2002 through all of the sleight of hand. Whether or not the NDAA and its application are informed by the laws of war, the United States is subject to the laws of war and these internal laws are ineffective to extract the United States from those obligations.  The task will fall to citizens of goodwill to keep pushing to keep America within the bounds of its international legal obligations – notwithstanding a remarkable and depressing tendency it seems of lawyers of both Obama and Bush to try to work around those rules rather than adhere to them. As to Brown and Kavanaugh – we go back to Kavanaugh’s confirmation hearing and what he said about his role with regard to torture of detainees in he Bush Administration and whether that was accurate. As to Brown, a judge believing that the AUMF authorizes, notwithstanding Hamdi, departures and violations from the laws of war is a judge who wishes us to play with fire.  We have already been burned with the War… Read more »