Still Thinking About That Gitmo Brief?

The Administration’s filing last week of a brief outlining its big-picture view of which Guantanamo detainees may be lawfully detained has sparked a vigorous – and I think productive – debate among international legal experts, human rights lawyers, and listserv participants on and off the blogosphere. So let me take the occasion to throw out a few recent articles/resources relevant to the whole debate that might be of use. And then a few other thoughts of my own.

Clearly on the reading list should be (Harvard prof) Ryan Goodman’s forthcoming piece in the American Journal of International Law. It’s a rich, rigorous, and directly-on-point assessment of what international humanitarian law does (and does not) say regarding the “preventive” detention of civilians caught up in the course of armed conflict. Among other key debates, Goodman takes on the notion (reflected to an extent in the recent Obama brief) that one can analogize readily from IHL rules governing targeting to (in some cases implied) rules governing detention.

Just as timely, but substantially more oriented to U.S. law and policy, is a forthcoming piece by Matt Waxman called, aptly enough: “Administrative Detention of Terrorists: Why Detain, and Detain Whom?” (Recall that one of Matt’s earlier works, “Detention as Targeting,” aimed rather directly to apply targeting rules to existing detention dilemmas.) The “whom” part starts on page 17. What does it conclude? Hint: the article is aimed at “reframing,” not necessarily at taking a position. Nonetheless, those looking for potential models for administrative detention will find a useful list of choices here.

Finally, for those interested in the “preventive” security detention policy debate more broadly, you might take a look at the latest symposium issue of the Case Western Reserve Journal of International Law . There, in addition to a summary report of an expert meeting co-sponsored by the ICRC on legal constraints governing security detention, you’ll find Ashley Deeks (late of John Bellinger’s State Department legal office but writing in her personal capacity) on IHL procedural rules governing detention, and Doug Cassel on what international human rights law has to say about it. There’s a great set of essays, too, focusing on how some of our allies have handled the matter. And a final set (including, full disclosure, one by yours truly) on what this all means for what we should do next.

Ok, so what if anything does this change about how I read last week’s brief? Well, I need to think more about the implications of Goodman’s piece. But in the meantime, I haven’t been able to get past the issue that’s been dogging me for a while, and came to the fore this past week. It’s great, and entirely right, that the Obama administration recognizes that international law needs to inform the interpretation of the AUMF – the federal law that appears to define the scope of executive authority to detain those held at Gitmo (giving the president authority to use “all necessary and appropriate force against those nations, organizations, or persons he determines” were involved in the 9/11 attacks). As the Supreme Court recognized in Hamdi, IHL has a great deal to say about what kind of detention power is appropriate in international armed conflict (regular old state-to-state war, like U.S. v. Afghanistan). But apart from what Common Article 3 of the Geneva Conventions has to say about conditions of detention (critically important, but after all not all that much), and the little bit more that international human rights law adds to the guidance about procedural protections, international law has very little to say about who it might be “necessary and appropriate” to detain in a non-traditional, non-international armed conflict. (As Goodman points out, direct analogies to the law of traditional armed conflict are fraught indeed.) Interpreting the AUMF by reference to international law is great, but where international law says or at least implies (as it surely does in the case of non-international armed conflict detention) that domestic authority controls, it is a perfectly circular (and therefore near useless) tool of statutory interpretation.

So what would not be useless when it comes to unpacking the scope of the AUMF for the Gitmo detainees? Well, traditional tools of statutory interpretation: text, context, canons, constitutional implication. Take, for example, the question about whether AUMF detention authority extends to non-international armed conflict participants (say, an Al Qaeda member) here in the United States. Do we think Congress intended the AUMF to extend that far (i.e. to folks like Padilla or Al Marri)? As became clear in the Padilla litigation, there are a host of other statutes in which Congress intended very clearly to legislate about domestic powers of military detention – including statutes, like the Patriot Act, that were passed essentially contemporaneously. I’d look at this statutory context in concluding Congress didn’t intend “necessary and appropriate” detention under the AUMF to extend to domestic arrests. But for the same reason such analysis I think helps make the domestic detention case relatively clear (and unauthorized), it makes much less clear the arrest of the Al Qaeda member-detainee picked up by the military in the Philippines. There’s a not unreasonable reading of the AUMF that authorizes that guy’s detention (subject, of course, to all the procedural protections the Supreme Court has now recognized the Gitmo detainees have). I’m still not entirely convinced this is the right reading, but it can’t be rejected out of hand. Still, just as I would argue (did argue, pre-Boumediene) that those procedural protections must be impliedly required by the AUMF to pass muster under the U.S. Constitution, so it seems entirely sensible to argue there’s an implied expiration date of the sweeping authority Congress granted at a time when it was clear what was intended was a quick and immediate (not everlasting) response to the attacks of 9/11. Such detention authority could plausibly be considered necessary and appropriate for detainees picked up in 2002. Detainees picked up in 2009? I might imagine that case much harder to make.