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…

A quick note to suggest that those interested in intelligence and surveillance topics check out the latest issue of the Journal of National Security Law & Policy, which features a host of interesting articles on U.S. and international law and intelligence collection by folks like Geoff Stone, Craig Forcese, and Steve Vladeck. I’d especially recommend the piece by David S. Kris, recently former Assistant Attorney General for National Security at the U.S. Department of Justice, who writes on “Law Enforcement as a Counterterrorism Tool.” As a response to chronic efforts in Congress to prohibit the President from ever using criminal prosecution as a way of handling terrorist suspects (and mandating military detention instead), Kris offers a powerful case on the other side.

Cross posted at Balkinization

Big news in the past day is the Obama administration’s announcement that a Somali national captured by the U.S. military somewhere in the Gulf has been transferred to New York for federal prosecution on terrorism-related charges.  According to the Justice Department (DOJ), the man, Warsame, was “questioned for intelligence purposes for more than two months” after his capture on April 19, 2011. The Times is here. Bobby Chesney has a link to the indictment and some analysis here.

Between ongoing debates on the Hill about the need to clarify the domestic authority for the President’s use of force against Al Qaeda et al., largely unrelated but similarly vigorous debates about the legality of operations in Libya, and this, an already busy summer on matters U.S. law and security-related just got a lot busier.  Still trying to digest what is known/not known about the latest case, but for now it might be helpful just to highlight some of the questions relevant to assessing the legality of the U.S. actions.

(1) Initial capture. A first question under international law: did the United States violate the territorial integrity of another state to affect the capture? DOJ seems to say only that the man was captured in the Gulf region, but the Times reports that the capture was made in international waters.  If true, the U.S. may avoid this issue, but hard to assess the finality of the Times’ report (it seems sourced only to one U.S. official).

(2) Detention. Here there are questions of both domestic and international law.  (A) Did the U.S. military have domestic authority to detain this guy?  Presumably it was acting under the statutory AUMF we’ve been discussing so much of late (e.g. here), on the theory that the statute authorizing the President to use force against those persons and organizations he deems responsible for the attacks of 9/11.  That such persons or organizations may be captured outside the confines of the Afghan/Pakistan battlefield has long been a (more or less explicit) part of both Bush and Obama administrations’ readings of that statute, a reading informed (in this administration) by the understanding that the international law of armed conflict (the law of war, IHL) does not prohibit otherwise authorized security-related detention.  The courts have not foreclosed this reading,
but neither, I believe, has it been conclusively upheld outside the Afghan/Pakistan setting.  (Someone will correct me if I’ve missed a case here…?) Probably a greater issue in this case: to what extent are the terrorist groups Warsame is alleged to be supporting – Al Qaeda in the Arabian Peninsula (AQAP) and al Shabab – within the scope of the AUMF?  Al Shabab is most obviously a domestic Somali insurgent group, and its links to Al Qaeda are, at least from what one can glean in the open literature, uncertain at best.  AQAP’s connection with the Al Qaeda of the attacks of 9/11 is plausible, but still pretty murky. As I’ve noted here before, the State Department lists Al Qaeda and AQAP separately as designated foreign terrorist organizations. AQAP was added to the list in 2009.

(B) As for international law, the law that applies depends in the first instance on whether one buys the idea that this detention came as part of an armed conflict. If AQAP and al Shabab are in an IHL sense associated with Al Qaeda (not an insubstantial if), then the theory that the lHL applies is nothing new from the U.S. government.  And there is nothing in IHL that prohibits the detention of individuals other than those entitled to, for example, formal POW status.  The critical thing IHL requires in circumstances of non-international armed conflict (a conflict between a state party and another identifiable party, not a state) is that the United States abide by the protections of Common Article 3 of the Geneva Conventions.  Central there, CA3’s prohibition against torture and any “outrages upon personal dignity, in particular humiliating and degrading treatment.”  The most reassuring signal on this would be whether the International Red Cross (ICRC) had access to Warsame during any of the two months he was held in ship’s custody. If, however, one is not convinced of the relationship of these groups to those who perpetrated the attacks of 9/11, and/or one has never bought into the idea that the United States is in a non-international armed conflict with those groups in the first place, then it is international human rights law and not IHL that applies. There, the most important treaty is the ICCPR, especially Article 9, which prohibits arbitrary arrests and requires a certain amount of process promptly upon capture.  (ICCPR also of course prohibits torture, etc.) No indication what if anything Warsame was told during these two months about why he was being held. 

(3) Prosecution. Now that Warsame has been brought to the United States for criminal prosecution, a separate set of questions arise under U.S. constitutional law.  There are potentially many, so I’ll just flag a few here.  One must assume that some pretty smart and experienced federal prosecutors already walked through these in far greater detail and concluded they’re surmountable obstacles before moving ahead with this particular case.  Take the 6th amendment speedy trial right.  There’s now precedent from the successful Ghailani prosecution in federal court holding that the period during which the defendant was held for intelligence-gathering purposes should be excluded from the speedy trial analysis.  This ruling was not without caveats, and I think it reasonable to expect that this conclusion turns at least in part on an assessment that the intelligence-related detention was lawful in the first instance (see questions about the legality of this detention above).  So defense counsel will have some argument here.  But I wouldn’t put money on defense prevailing on this one.  Then there’s the two month delay in the reading of Miranda rights (you have the right to an attorney, etc.).  Miranda becomes relevant only if the government seeks to introduce un-Mirandized evidence in at trial.  Mr. Warsame presumably has a strong argument that any statements he made pre-Miranda should not be considered admissible in trial.  But I’ll be surprised if the government seeks to introduce any of those statements into evidence. Odds seem high that the government thinks it can make its criminal case without any of the pre-Miranda statements. Among other things, evidently Mr. Warsame waived his rights continued to talk even after Miranda was read.

Ben Wittes, long an advocate for clearer domestic legislation authorizing U.S. detention operations, writes to ask whether my recent post favoring the Senate’s over the House’s version of pending legislation signals a shift in my position opposing new such legislation. The short answer is no. Here’s why.

I’d praised the Senate’s draft of force authorization language as follows: “Where the House bill seemed intent on expanding the scope of that authorization (indeed, on expanding our understanding of the nature of the armed conflict in which the United States is engaged), the Senate bill appears to contain no such language. On the contrary, it ties detention authority squarely to the 2001 AUMF, and describes the scope of that detention authority precisely as the courts (and Obama Administration) have done in the Guantanamo habeas cases in the federal courts. It also, for the first time, makes express Congress’ intention that detention under this authority be carried out pursuant to the law of war.” In response, Ben asks: “Is there a softening here of opposition to detention legislation? Or is the apparent complacency about the Senate language merely complacency relative to the House language?”

It’s the latter. I’d intended to express a preference for the Senate version over the House version among bills currently on the table; not to express a preference for any legislation here over none. For reasons I’ve often expressed, I don’t think new legislation at this point purporting to clarify the domestic authority the detention operations we’ve been engaged in for a decade serves a productive purpose, either as a matter of policy or law. With respect to those currently detained, the courts have now reached a relative consensus on who may be lawfully held, reflecting a standard largely embraced by the executive as well. (It is a not a consensus with which I agree in all respects, but there can be little question that its contours have been subject to vigorous, adversarial debate: Congress passed a general law in the AUMF, the current executive proposed an interpretation of it (in light of intervening Supreme Court decisions), and the courts subsequently embraced that interpretation (more or less).) On the particular question of whether the existing detention authority should be interpreted in light of applicable international law, the President and the Supreme Court both, rightly, think it should. Only a few judges on the D.C. Circuit seem to think otherwise. I think the Senate version on this issue sensibly comes down on the side of the President.) It took a decade to arrive at this point of relative clarity. New legislation would not usefully put a period at the end of that discussion. It would serve only to open a new series of debates.

But I don’t actually think the proponents of new legislation are mostly concerned with adding clarity, or due process legitimacy, to what has been done. As the House version of the pending legislation suggests, the purpose I think motivating most who are interested in new legislation is to make clear that what detention authority already exists should continue to exist, and in broader form, going forward. That is, that the United States should continue to have the authority to detain not only those held in the conflict in Afghanistan, for example, but also anyone we might pick up and suspect of terrorist activity anywhere else, whether or not tied to the attacks of September 11. It is hardly congressional engagement I object to in general. It is the content of this particular legislative action – the notion that broadening existing military detention authority (and, one might add, hamstringing the executive’s ability to prosecute detainees criminally) to combat the threat of international terrorism is a good idea. So given a choice between a bill that pursues this more-detention goal (the House version) and one that, as best I can tell, does not (the Senate), I’d certainly prefer the latter. That said, if I’m misreading the Senate bill – if it does in some way expand the scope of who may be detained beyond what the courts have said the existing AUMF already does – I’d be most interested to understand how.

Some of you will recall the series of posts a few weeks back about the new authorization for use of military force (AUMF) legislation that the House of Representatives debated and passed at the end of May. Among other things, the bill would prohibit the use of Defense Department funds to transfer Guantanamo detainees to the United States for criminal prosecution, and also seemingly extend and/or expand the President’s authority to use force against terrorist suspects worldwide. I argued here, here and here that the legislation was ill-advised and praised the Obama Administration for threatening to veto it.

This week, the Senate Armed Services Committee takes up the debate, and a colleague has passed along a briefing paper that the Administration is circulating on the Hill detailing its position. I’m still figuring out how to post a PDF, but in brief, the 7-pager explains in even clearer terms than earlier statements in response to the House bill why the Administration opposes the measure. On the idea of a new AUMF, the paper raises both sound legal and policy objections. The relevant section follows.

“The President has the authorities he needs to capture and detain supporters and members of al-Qa’ida, the Taliban, and associated or affiliated forces. Legislative efforts to update these authorities, however well intentioned they may be, would change horses midstream with no discernible benefits, and would risk both inviting waves of new litigation and sending mixed messages. Over the course of nearly a decade of policy development and litigation, the Executive Branch has used the 2001 AUMF to provide the legal basis for using necessary and appropriate force, including detention, against al-Qa’ida, the Taliban, and associated forces. The Administration has zealously and effectively pursued the enemy under this existing authority, and has successfully defended its authority to detain in the federal courts. Now is not the right time to reconfigure a legal framework which, generally speaking, has been approved by the judiciary.

The proposed language does not simply confirm the President’s existing authorities based on the 2001 AUMF. Rather, it seeks to update those authorities, and could be interpreted by the courts as an effort to override current relevant domestic and international law. For example, language that extends detention authority to all persons who had been members or supporters of an enemy force at some point in the potentially distant past before the commencement of armed conflict, or in cases where the individual has demonstrably left the group in question prior to capture, is out of line with judicial decisions as well as the laws of war. Moreover, bills that introduce new terms like ‘affiliates,’ without definition, raise unnecessary ambiguities and expose the United States to the charge that its critical national security designations are not meaningfully governed by the rule of law. Thus, the proposed language could unsettle rather than clarify the law.

Revising the AUMF also threatens to place foreign policy and national security goals at risk. By ‘updating’ the 2001 AUMF, the legislation could encourage the view – held rightly or wrongly – that the United States is seeking to expand the scope of the armed conflict, make that conflict permanent, and/or claim authorities unknown to international law. Moreover, many international observers will wonder why the United States has chosen this time to reaffirm a state of armed conflict with the Taliban, given efforts to promote transition and reconciliation in Afghanistan.”

For those who follow these topics, two items of note. First, an AP story today reports that the United States is building a secret CIA air base in the Persian Gulf region to support U.S. targeting operations in Yemen. The story is sourced to anonymous government officials, and reports that “U.S. forces have stepped up their targeting as well, because of the besieged Yemeni government’s new willingness to allow U.S. forces to use all tools available — from armed drones to war planes — against al-Qaida as a way to stay in power, the U.S. officials said.” Coupled with the debate this week in the Senate about whether to sign off on a bill giving the President wider authority to use force against Al Qaeda and associated groups (more on which here, here, and here), this is significant news. I’m surprised not to have seen it picked up more yet.

Second, and certainly timely, the Cato Institute has a set of essays up by John Dehn and others looking at the legality of targeted killing. The lead essay by Ryan Alford focuses on Anglo-American constitutional principles against the killing of a citizen or subject without judicial authorization. Check them out here.

In a post last week, I recommended Human Rights First’s new report on U.S. detention and trial operations in Afghanistan for its insights into the evolving situation there.  I also raised a question about the legal framework the report used to analyze the sufficiency of detention procedures: “HRF (in my view correctly) describes the current conflict in Afghanistan as a NIAC, but then moves directly (past Common Article 3’s “regularly constituted courts,” APII, etc.) to int’l human rights law (ICCPR) for the relevant procedural standards. Especially given the United States’ long held (if, in my view, unfortunate) position that ICCPR doesn’t apply extraterritorially (which the report acknowledges), this seems a bit of a tough legal case to make. Beyond the trial situation (to which it seems CA3 would surely apply), as long as we’re choosing between legal regimes the United States officially rejects, why not pick APII, or API by analogy, as the more useful standard? Truly asking here.” Responses to that question produced an interesting exchange on and off-line between Gabor Rona and Marty Lederman. With the relevant permission for the off-line part, I excerpt their exchange here.

Cross-posted at Balkinization

Bobby Chesney writes back with a thoughtful post responding to my question about whether the United States has forward-going detention needs in its counterterrorism operations that are currently unmet by the 2001 statute known as the AUMF. The question arises in light of Congress’ current debate over whether to pass (as the House already has) new legislation essentially extending and broadening existing use of force authority it passed in 2001.

Before I engage Bobby’s suggestions, a quick note principally to our readers not as steeped in domestic U.S. law who have written to ask what this debate is all about. So in grossly abbreviated form… As a matter of domestic U.S. law, the executive must have some affirmative font of authority for carrying out war-making and/or counterterrorism operations, either under the Constitution or under a statute passed by Congress. The Gitmo detainees and others who challenged the legality of their detention starting in 2002 argued, among other things, that the executive lacked such authority. In 2004, the U.S. Supreme Court held in a splintered plurality opinion that (a) the AUMF (which I quote in an earlier post) did give the executive the authority to detain, at a minimum, “an individual who…was ‘part of or supporting forces hostile to the United States or coalition partners’ in Afghanistan and who ‘engaged in an armed conflict against the United States’ there”; and that (b) the Court’s interpretation of the scope of the AUMF was informed by “longstanding law of war principles.” Litigation in lower federal courts since then has reached some stasis regarding who else beyond the individuals described in Hamdi could be detained, and (although less clearly) how IHL informs this conclusion. Broadly speaking, the courts have read the current AUMF to authorize the detention of members of Al Qaeda, the Taliban, and “associated forces,” as well as those who, to some not entirely clear extent, “support” those groups, provided they’re connected at some level to the attacks of 9/11. The current debate is whether Congress should authorize the President to use force (including force to detain) against more than just these categories of individuals and groups, and whether or not connected to 9/11 per se.

Ok, that said, Bobby suggests there are two categories of individual the United States may need/want to detain in the coming years who he thinks may not be covered by the existing AUMF: (1) Al Qaeda-member detainees like KSM who we’re currently holding at Gitmo and who we may want to continue to hold after the cessation of active hostilities in Afghanistan (when IHL would presumably require Taliban members to be repatriated); and (2) a bomb-making expert (or the like) who’s a member of Al Qaeda in the Arabian Peninsula (AQAP), a group that Bobby (and John Dehn in a helpful comment to an earlier post) I think probably rightly understand as “ideologically but only arguably operationally aligned with al Qaeda” (John’s formulation). (FWIW, the State Department lists Al Qaeda and AQAP separately as designated foreign terrorist organizations. AQAP was added to the list in 2009.)

These are useful examples, but I’d say still don’t really make the case for new and improved use-of-force authorization. The first example is the easier one. KSM is the poster child for the terrorist who could and should (long ago) have been prosecuted in federal criminal court. That he hasn’t been is a moral and political (and legal) embarrassment brought about in substantial part because various members of Congress keep proposing laws like the one that passed along with the House bill yesterday, barring the President from prosecuting any foreign terrorist suspect, wherever he may be detained, in any criminal court. As I think I can safely say based on past discussions (not to mention recent posts), neither Bobby Chesney, nor Ben Wittes, nor Jack Goldsmith, nor Marty Lederman, nor I (all oft-times on opposing sides of these issues) think such a ban is a good idea. I also think it safe to say KSM will, at a minimum, face prosecution before military commission in any case. As for the non-KSM Al Qaeda member at Gitmo, particularly given the habeas cases already decided, I guess I’d say it’s pretty clear they’re considered ‘grandfathered in,’ as it were, under the existing AUMF. Hope of course springs eternal we might eventually just prosecute him, too.

What, then, of AQAP, which seems to be something of a post-9/11, quasi-independent franchise of bin Laden’s Al Qaeda (looking to profit, as it were, from the notoriety of the Al Qaeda brand name)? Let’s imagine for a minute that it is in fact this group and its ilk that Congress has in mind in thinking the President needs more detention authority than he has. If AQAP really didn’t crystallize til 2009 or thereabouts, and if its relationship to Al Qaeda per se is less than clear, maybe (maybe) the existing AUMF doesn’t extend. So if that’s who we’re after why tie such groups to the language of the 2001 AUMF at all? Why not let well enough alone 2001 AUMF-wise, start afresh, and draft a new authorization for the use of military force, all divorced from 9/11, that aims squarely at AQAP and, how might one say, its “ideologically aligned” groups? I can hypothesize at least two reasons why Congress hasn’t gone that route, and both of them suggest to me that we should be concerned about the route they’ve taken instead. First, Congress doesn’t want to bear the political heat of effectively declaring a new war, or a Version 2.0 war, as it’s politically far less costly to just take advantage of the appearance that any upcoming military engagements are one long continuation of the same fight. Second, imagine an authorization for the use of force that actually candidly described what it appears to me the bill’s sponsors have in mind. I’m going to use exaggerated language here, but it’s in service of trying to clarify the point: “…all necessary and appropriate force against AQAP and allied or otherwise ideologically aligned groups engaged in terrorist operations.” Such a construction not only shares the overbreadth problems of the current formulation, it starts to sound a whole lot like the kind of war against Islamic extremism that both post-9/11 administrations have insisted they wish to avoid. And it tees up the strategic argument against such an approach that I think deserves serious attention.

Here, Suzanne Spaulding, former general counsel for the Senate Select Committee on Intelligence, former executive director of the National Commission on Terrorism, makes the case better than I.

Osama Bin Laden sold the notion of a “Global Jihad” as a way of bringing disparate terrorist groups, who had been locally or regionally focused, into his fight with the West. He convinced them that they couldn’t change their local regimes, the “near enemy,” because those regimes were backed by the “far enemy,” the United States and other Western nations. The only way they could succeed with their local objectives, he argued, was to join his global fight against the far enemy…. [T]he events of 9/11 provoked the United States into declaring its own Global War, which Bin Laden used to support his claim that Muslims were called to join in the Global Jihad. No matter how many times US political leaders asserted that they were not engaged in a War on Islam, Bin Laden and his followers pointed to America’s Global War to inspire new recruits. The reason the Arab Spring was such a devastating blow to Bin Laden’s strategy was that the near enemy was overthrown by the efforts of the local population, not as a result of the Global Jihad.… With Bin Laden’s death, the most effective advocate for the globalization of terrorism is gone. Tensions have long existed within al Qaeda between those who believed in the imperative of going after the far enemy and those who thought poking a stick at the West was folly and the fight should be taken more directly to the near enemy. Those fissures should now grow, further complicating the struggle for succession….If we can undermine the appeal of a global movement, that would have significant long-term benefits.

If one buys this case, even a bit, then it strikes me important reason for hesitating to start the post-bin Laden era by declaring war all over again.

Cross-posted at Balkinization

The U.S. House of Representatives today passed its version of the 2012 National Defense Authorization Act, including provisions that prevent any of the Gitmo detainees (or indeed any terrorism suspects) from being subject to criminal trial, and also “affirms that the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces,” whomever those “forces” might be. I take some comfort in the fact that there’s still the Senate and the President’s threatened veto standing between the House bill and the law of the land.

In the meantime, responding to my post below arguing that a new authorization for use of force against Al Qaeda et al. is a bad idea, Bobby Chesney writes the following:

“[I]t seems to me that Deborah’s argument to the contrary–i.e., that the 9/18/01 AUMF is indeed going defunct simply by virtue of the passage of time–is precisely why the proponents of a new AUMF feel it worthwhile to restate explicitly that the executive branch can use military force in dealing with al Qaeda. From this point of view, it seems to boil down to whether one thinks that the potential for temporal expiration of the existing AUMF is a good or bad thing. I think it is a bad thing, as I do not think that the need for military force against al Qaeda (and hence the utility of having Congress actually authorize such force, rather than obliging the executive branch to fall back on Article II arguments) has dissipated sufficiently notwithstanding UBL’s death.”

I had expressed the view that the 2001 AUMF had some sort of implicit time limit attached, a limit one could understand as either a function of the passage of time or, as Bobby sensibly notes elsewhere, more specifically as tied to the facts on the ground. (At the moment, the passage of time has seemed to be associated with the weakening of Al Qaeda per se, but it is true that circumstances could change.) To be clear, I had O’Connor’s warning about AUMF interpretation in Hamdi in mind: “Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.”

But Bobby’s more important point is the one I quote above – namely, that how one feels about the new legislation depends on whether one thinks we need forward-going authority to, say, detain members of Al Qaeda we might catch, say, tomorrow. In this respect, I think Bobby’s put his finger on exactly the key issue, and it’s a biggie. It’s about whether we want to continue to give the President very broad detention authority going forward. Bobby thinks he needs it. I’m not so sure.

Here’s my thinking. Let’s say we can assume, based on the outcome of habeas litigation to date, that the detainees at Gitmo and the detainees now held (or picked up in the next year or two, as the U.S. transfers detention operations to Afghan control) in Afghanistan will generally be considered by the courts and the executive to be covered by the existing AUMF (to the extent the government can establish the relevant facts). Beyond these cases, how do we measure or assess the need for forward-going detention authority to combat Al Qaeda, the Taliban and “associated groups”?
Historically, one way of making this assessment has been to defer to executive judgment. This ‘deference’ was on the grounds, the argument has gone, that the executive has the best access to information and insight into U.S. security needs. Here of course, the executive actually opposes the bill. And the initiative to expand or at least prolong detention authorization comes not from the executive branch but from folks on the Hill who, as best I can tell, haven’t spent much time formally (or informally?) seeking executive branch or other putatively expert opinion on the matter.

Another way of making the case for new and improved detention authority is to demonstrate independently that there is some unmet need out there – for example, that executive agencies have been hamstrung in their counterterrorism activities by a perceived lack of existing detention power. Given the degree of classification involved in U.S. counterterrorism operations in such matters, that kind of independent case has always been difficult to make. Indeed, to the extent I’ve seen such arguments, they seem heavily dependent on, at best, individual and unverifiable anecdotal accounts. Or on slippery logical claims that find causal connections where causation is entirely unclear. (For example, the argument that the United States is engaging in more targeted killing operations in the Af-Pak theater because they’re not sure how much detention authority they have. It seems equally plausible to me that the United States is engaging in more targeted killing operations because, say, after a decade of field intelligence collection we have a better sense of where lawful targets may be found than we did when we opened Gitmo in 2002.)

In any case, the new bill puts a premium on making a contemporary and persuasive case in favor of detention authority that lasts longer (and, under the current version, sweeps more broadly) than the authority we’ve found sufficient to deal with the detention operations we already have under way.

Cross-posted at Balkinization

Congress is debating a defense authorization bill this week that would not only prohibit the use of Defense Department funds to transfer Guantanamo detainees to the United States for criminal prosecution, but also effectively double down on the Authorization for Use of Military Force (AUMF) legislation Congress passed just after the attacks of 9/11. Here’s the bill. Recall that the 2001 AUMF has come to serve as the key legal authorization for ongoing detentions in Afghanistan and Guantanamo, as well as (at least in part) for U.S. targeting operations overseas. While congressional efforts to hamstring the criminal prosecution of terrorists are no longer new – though still just as misguided – the re-authorization for the use of force language is new, and efforts to discern what it all means have filled my inbox to overflowing. For my money, I’d say the proposed language makes matters worse for a host of reasons (more on which in a sec). So I was delighted to see the Obama Administration issue a statement yesterday threatening to VETO the entire bill if the set of detainee-related provisions are included. Here’s their take. Although the Administration has complained about the Gitmo prosecution-and-transfer restrictions in the past, this is the first time it has issued a veto threat to underscore the seriousness of its objections.

Bobby Chesney raises the question whether the veto threat should be read to extend to the AUMF redux provisions. I sure read it that way, and we should count on the Administration to say publicly otherwise if there’s any serious question of its intent. The fact that it’s threatening a veto here and hasn’t raised such a threat to earlier, fundamentally identical, transfer restriction provisions might favor the reading that it sees something new in this bill it doesn’t like even more than it didn’t like earlier bills. In any case, I hope the threat extends. Without parsing in detail, here are three of the reasons why I think the new language is a mistake. (I’m also pasting copies of the relevant bills – the original AUMF and the newly proposed language – below so you can judge for yourself. )

(1) A new use of force authorization resets the detention clock. Since 2001, courts interpreting the scope of the original AUMF have at times suggested that there’s probably some implicit time limit on the effectiveness of the authorization. Did the AUMF suffice to authorize the detention of Afghan belligerents in 2001? Sure. Would it suffice to authorize the detention of Somali belligerents in 2021? A harder sell. Interpreting the provision this way only makes sense. It’s hard to believe Congress really think it was buying into an indefinite authorization to detain anywhere, anytime for the rest of U.S. history. But new legislation at this point probably would be seen to extend whatever implicit time limit exists. With the U.S. working to hand over detention operations in Afghanistan to the Afghans, and still committed (for what it’s worth) to reducing the detention population at Guantanamo, what’s the case for getting another ~10-15 years worth of detention authority out of Congress in this conflict?

(2) A new authorization resets the litigation clock. Whatever argument the new bill’s supporters might have that this bill is simply meant to codify the detention standard the courts have already adopted in interpreting the original AUMF (and all such arguments I’ve heard require reference to deep legislative history and other extrinsic sources of interpretation that folks like Justice Scalia, among others, abhor), I think it’s impossible to say that this bill will do anything to clarify the work the courts have already done in interpreting the scope of the original AUMF – and more likely does much to throw stones into those already plowed fields. Judging from my own, highly skewed sample of email correspondents, ask 20 lawyers what they think the new bill means, get 20 different answers. Still think legislation is a cure-all for interpretive uncertainty? I’m thinking the 2005 Detainee Treatment Act, the 2006 Military Commissions Act, and the 2009 Military Commissions Act should be enough to squelch that hope. At this point, new legislation is a step away from the legal resolution of detainees’ status, not toward it.

(3) Overbreadth. Who exactly are forces “associated with” Al Qaeda and the Taliban? This is hardly a new concern, but unlike other aspects of the scope of detention authority, years of litigation and briefing have actually done fairly little to clarify this. If the relevant associated forces are groups in, say, Afghanistan, that we’ve spent a decade mapping out, then why not just name them? If the notion is to cover some heretofore unidentified force that might one day pose a threat, why legislate about them now, and require that they be tied (however loosely) to the weakening Al Qaeda? Congress is quite capable, with surprising speed these days, of authorizing the President to use force against threats that arise. If one thinks legislation is of value in part because it forces democratic deliberation over politically salient issues, how is this value served if Congress is voting for something it doesn’t in any meaningful way understand? This “associated force” problem already exists in the current AUMF. Recapitulating it here – especially given the benefit of 10 years of war-fighting and intelligence we didn’t have when we hurriedly passed the use of force authorization in 2001 – seems an unnecessary, and therefore concerning, fudge.

For the record, here’s the text of the current AUMF, followed by the text of the proposed language below.

AUMF OF 2001
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH AL-QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.
Congress affirms that—
(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated
forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

Nothing like the end of the semester as a cure for one’s reading pile. In addition to Marty Lederman’s post on the bin Laden targeting below (great to have him back in the blogosphere!), I’d recommend the following reports you might have missed.

First, back in April, around the time the Times published its account based on Wikileaks documents of the detainees who’ve passed through Guantanamo Bay, Princeton undergraduate and honors student Sam Dorison handed in his senior thesis. Why mention a student thesis here? It’s the best (and in key respects only) study that uses statistical methods to analyze who has been released from Gitmo since 2002 and why. He correlates a range of individual characteristics with length of detention and concludes, among other things, that a detainee’s citizenship is the most significant factor in determining his length of detention at Guantánamo Bay. For those who’ve been following this, that conclusion may well seem consistent with your general sense. But note the significance: (1) release from Gitmo is at best only very slightly correlated with the level of threat the government thought the detainee presents, and (2) citizenship matters not because we’ve necessarily released detainees to our allies but not our enemies, or to human rights-respecting countries but not human rights violators, but because it reflects the detainee’s home country’s ability to monitor him after release; a lower capacity to monitor translates to longer detention duration. Sam’s data are drawn principally from 516 CSRT reports and also take account (with a critical eye) of all the available studies already out there (some of which are of course better than others). For those keeping track at home, well worth a look.

Second is a new report by Human Rights First on U.S. detention operations in Afghanistan – the most thorough and up-to-date assessment on the topic I’ve seen by a long shot. Reflecting on the fact that the number of detainees in Afghanistan has nearly tripled since President Obama took office (now up to 1700, no doubt a reflection of the increased pace of U.S. operations in country), HRF writes up its observations based on the remarkable access they were granted by the U.S. military to observe a handful of detainee review board hearings, as well as an Afghan trial supported by the United States, late 2010-early 2011. HRF also interviewed former detainees, Afghan defense lawyers, prison officials, and U.S. military and State Department personnel. The upshot: while the Obama administration has made some noteworthy progress, there’s more work to be done. Bagram prisoners now have the right to appear before a board of military officers to dispute their detention as “enemy belligerents” fighting U.S. forces, they lack the legal representation the Gitmo detainees have enjoyed, and still lack the right to see the evidence against them. And while the Afghans have begun conducting some actual trials under U.S. auspices, those proceedings have a long way to go before they come close to meeting international standards of fair trial. Make of all this what you will – I actually take some comfort from the reality that HRF had the kind of access they did, and from at least the general trajectory of detention policy there – but I’m very glad HRF continues to hold the USG’s feet to the fire in Afghanistan. For now, one last suggestion that readers may be interested to note HRF’s application of legal framework here, which is to me a not entirely clear blend of IHL and human rights law. HRF (in my view correctly) describes the current conflict in Afghanistan as a NIAC, but then moves directly (past Common Article 3’s “regularly constituted courts,” APII, etc.) to int’l human rights law (ICCPR) for the relevant procedural standards. Especially given the United States’ long held (if, in my view, unfortunate) position that ICCPR doesn’t apply extraterritorially (which the report acknowledges), this seems a bit of a tough legal case to make. Beyond the trial situation (to which it seems CA3 would surely apply), as long as we’re choosing between legal regimes the United States officially rejects, why not pick APII, or API by analogy, as the more useful standard? Truly asking here.

Finally (for now, I’m still catching up), former State Department Legal Adviser John Bellinger and his former State Department colleague (and soon-to-be Vanderbilt Law professor) Vijay Padmanabhan have a new piece out in AJIL lamenting the ongoing gaps they describe in IHL as applied to non-international armed conflicts. I confess I’ve only skimmed it so far, but particularly in light of my questions about the law HRF is applying in evaluating U.S. operations in Afghanistan, I’m going to give this a careful look. For the time being, let me just quote from the article’s ambitious statement of mission.

[O]ur hope is that by identifying areas of agreement among states detaining nonstate fighters, and by suggesting additional considerations that should receive further thought, the international community will be better positioned to develop new law for guiding and constraining state action in future conflicts. While we recognize that a new international instrument, even if advisable, is unlikely to be achieved in the near future, an agreement on common principles by like-minded states would further the process of legal development—which is urgently needed in this area.