Three Thoughts on the Preliminary Detention Report

My thanks to Deb for her post on the Preliminary Report.  I won’t rehash what she said; I just wanted to offer a few thoughts on the military commissions and the detention policy.  First, I think it is interesting that the Obama administration seems to be conceding that “material support for terrorism” is not a violation of the laws of war and thus cannot be prosecuted by a military commission.  Here is what David Kris, an Assistant Attorney General, told the Senate Armed Services Committee a couple of weeks ago:

There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy. However, we believe conspiracy can, in many cases, be properly charged consistent with the law of war in military commissions, and that cases that yield material support charges could often yield such conspiracy charges. Further, material support charges could be pursued in Federal court where feasible.

This is a welcome admission, for reasons I have discussed before.  That said, I wish Kris had provided some explanation of why the Obama adminstration continues to insist that “conspiracy can, in many cases, be properly charged consistent with the law of war in military commissions.”  I think that is a difficult argument to make, for reasons that Steve Vladeck has ably explained in a Northwestern University Law Review colloquy entitled — delightfully — “On Jurisdictional Elephants and Kangaroo Courts.”  Indeed, as Steve notes, the plurality in Hamdan concluded that conspiracy is not a substantive violation of the laws of war (pp. 603-04).

Turning to the Preliminary Report itself, I am less certain than Deb that the Obama adminstration intends to rely on the AUMF for the power to detain individuals who — according to the administration — cannot be prosecuted either in federal court or by a military commission.  I was struck by the following comment in the report:

Important questions remain concerning our policies in the future concerning apprehension, detention, and treatment of suspected terrorists, as part of our broader strategy to defeat Al Qaeda and its affiliates.  We need to consider in greater depth… what the rules and boundaries should be for any future detention under the law of war.

That statement makes sense concerning members of “Al Qaeda and its affiliates” captured in Afghanistan, where the US is clearly engaged in an international armed conflict. It makes no sense at all, however, concerning individuals captured outside of Afghanistan, who are not engaged — as Hamdan held and as IHL scholars nearly uniformly agree — in an international armed conflict with the US.  As Marko Milanovic has pointed out, because IHL has nothing to say about detention in non-international armed conflicts, it is a category mistake to derive “rules and boundaries” for detaining such individuals from the “law of war.”  Such detention can only be justified by US law, such as (perhaps) the AUMF:

International armed conflicts are conflicts between two states, two equal sovereigns. That is why the combatants in such conflicts have the privilege to participate in hostilities, and can at the same time be lawfully killed. If captured, they can be lawfully detained as prisoners of war so that they do not participate in hostilities, for the duration of the hostilities (see Arts. 4 & 118 of the Third Geneva Convention). Civilians can also be interned, if the security of the Detaining Power makes it absolutely necessary, on an individual basis and with periodic review (see Arts. 41-43 of the Fourth Geneva Convention).

In both cases it is international law itself that provides the authority for detention. But this is simply NOT the case in non-international armed conflict. In such conflicts, IHL neither authorizes nor prohibits detention or internment, but leaves this matter to be regulated by domestic law and by other parts of international law, such as human rights law. The reason for this is that there is no privilege of belligerency in non-international conflicts, no right to participate in hostilities, as states would NEVER recognize the right of non-state actors to use force against them.

[snip]

The Obama administration’s position is thus internally contradictory. On the one hand it claims that the US is engaged in a non-international armed conflict with Al-Qaeda, and on the other tries to import rules governing international conflicts into precisely the one area where they cannot be imported. International law governing non-international armed conflict has absolutely nothing to say on the authority to detain, and it cannot be used to interpret the AUMF as creating such authority. If the AUMF actually contained a provision with the detention standard proposed by the administration, then this standard could be assessed on its own merits against the US Constitution and international human rights law. But the AUMF contains no such provision, and it just cannot be read into a mere authorization to use force.

Finally, it’s worth noting that the Detention Policy Task Force is clearly not limiting its inquiry to individuals who have already been captured.  As the report indicates, the Task Force is planning to consider “in greater depth… what the rules and boundaries should be for any future detention under the law of war.”  That’s troubling, given that the Obama administration has repeatedly claimed that a preventive-detention scheme is only necessary because of the evidentiary problems created by the Bush administration’s torture regime.  If that were true, there would be no need for preventively detaining members of “Al Qaeda and its affiliates” captured in the future, who would presumably not be tortured.  Glenn Greenwald says it best:

Nobody is talking about confining the power of preventive detention or military commissions to current Guantanamo detainees who were tortured.  The opposite is true: this is to be a permanent, institutionalized detention scheme with the power vested in the President going forward to imprison people with no charges.  Claiming this is necessary because of what Bush did to the 230 remaining Guantanamo detainees is a total nonsequitur.  If, as Obama defenders claim, that is really the justification, why will these powers apply well beyond that?

An excellent question.