Detention in NIAC — A Reply to Wittes and Chesney (and a Defense of Vladeck)

Steve Vladeck has been having a fascinating debate with Ben Wittes and Bobby Chesney about the merits — or lack thereof — of Sen. Lindsey Graham’s proposed “Terrorist Detention Review Reform Act,” which Wittes and Chesney support and Steve opposes.  Steve doesn’t need my help in the debate, which I think he’s clearly winning.  But I couldn’t let one point go, because Wittes and Chesney make a categorical claim about an issue in IHL that in no way admits of a categorical answer — particularly the one that they favor.

The issue concerns what the law of war (IHL) says about detention in non-international armed conflict (NIAC).  That question is relevant to the TDRRA, because the Act permits the government to detain without trial anyone who “has purposefully and materially supported hostilities against the United States or its coalition partners,” regardless of where that person is apprehended.  In his most recent post, after discussing constitutional problems with the TDRRA’s capacious definition of “material support,” Steve argues the following:

Third, even if the material support statute doesn’t violate the First or Fifth Amendments, “material support” as a concept has never been endorsed as a basis for detention under international humanitarian law, let alone as a basis for trial by military commission. There’s certainly a lot of disagreement over just how far IHL goes in defining belligerency, especially in a non-international armed conflict, but the provision of “material support,” without more, goes well past any recognized precedent, decoupling detention authority from any meaningful requirement of active participation in hostilities.  In this sense, then, the Graham bill would provide detention authority that fundamentally transcends not just the limits of international humanitarian law, but its analytical underpinnings.

Wittes and Chesney casually dismiss this argument.  Here is what they say (my emphasis):

Steve’s argument appears to be that “material support” reaches conduct that would not constitute “direct participation in hostilities” or any other formulation approximating the idea of being a belligerent, and hence either that it is a waste of time to use this as a detention standard in a statute (an argument that requires a theory as to why the statutory judgment would not control) or else that it is simply undesirable to do so (an argument that requires a policy justification).   Insofar as this is an argument that the law of war permits detention in this setting (i.e., non-international conflict) only as to persons who directly participate in hostilities, well, suffice to say that no U.S. court has yet accepted that position and that several of the district judges in the habeas litigation have rejected it.

I assume the theory behind Steve’s argument is that if the AUMF’s detention power is “informed by the laws of war,” as the administration claims, the TDRRA’s detention power should also be so informed — in which case it matters what IHL actually says about detention in situations other than international armed conflict (IAC).  And I assume the policy justification is that it is bad to detain without trial at least some kinds of people who have engaged in “material support” for terrorism, given Humanitarian Law Project‘s ridiculous conclusion that things like training terrorist groups in IHL qualifies as “material support.”

More importantly, Wittes and Chesney don’t bother to defend their claim that the rules of IHL in NIAC permit detention of individuals who “materially support” terrorism.  Instead, they simply point out (with no links or citations) that “several district judges” have taken that position.

To begin with, it is important to note that both sides of the debate assume that IHL applies to the detention of alleged terrorists apprehended in the U.S. or in other locations.  That is a questionable assumption, as I have explained before.  But at least Steve would require “active participation in hostilities” by the alleged terrorist; such participation is the minimum necessary to connect an individual to a NIAC who is located away from the battlefield and is not a member of an “organized armed group” participating in that conflict, and there is no credible argument that “material support” qualifies as active participation.  Wittes and Chesney, by contrast, simply ignore the issue entirely.

But let’s assume that the rules of IHL in NIAC do apply to the detention of alleged terrorists apprehended in the U.S. and in other locations that are not geographically connected to a NIAC.  Wittes and Chesney’s claim that those rules permit the detention of anyone who “materially support” terrorism is still questionable.  Most importantly, nothing in conventional IHL explicitly authorizes detaining anyone in NIAC.  Common Article 3 and the Second Additional Protocol impose restrictions on how detainees can be treated; they do not authorize detention itself.

That does not mean, of course, that IHL is silent concerning detention in NIAC.  It is still possible that such detention is inherent in conventional IHL or that there is a customary rule permitting it.  In fact, the participants in a 2008 “Expert Meeting on Procedural Safeguards for Security Detention in Non-International Armed Conflict,” jointly sponsored by the ICRC and Chatham House, concluded that a “qualified or conditional right to intern” in NIAC is “consistent with the spirit of IHL.”  That is itself a contestable conclusion, but let’s assume that the experts are right.  If such a “qualified or conditional right” exists under IHL, does it justify detaining individuals accused of “materially supporting” terrorism?

Probably not.  Here is what the expert report concluded:

If IHL provides an implied power to intern in NIAC and IHRL does not exclude it per se, the debate is then narrowed to the question of the parameters of such a power and how it may be practically exercised. Participants were of the view that, taking into account the exceptional nature of internment as recognized under both IHL and IHRL, any internment must be “necessary” for “imperative reasons of security” (meaning directly related to the armed conflict). There was also agreement that there must be “lawful authority” or a “legal basis” to intern and that internment can only be ordered on “permissible grounds” under international law. Finally, there was agreement that, leaving aside the issue of habeas corpus under IHRL, some form of review mechanism to initially and then periodically assess the lawfulness of internment (i.e. whether it is or remains necessary for security reasons and whether there is a legal basis) is required. The burden of demonstrating the necessity of continued interment is on the interning authorities.

And here is what the report said about “imperative reasons for security”:

In the discussion, participants coalesced around a two-tiered test to assess whether an individual presents a sufficient threat to allow his or her internment. The first element of the test is whether, on the basis of his or her activity (which as such is not necessarily criminally prosecutable), it is “highly likely” or “certain” (the threshold is unclear) that he or she will commit further acts that are harmful (directly and/or indirectly, the threshold is unclear) to the interning Power and/or to those whom the interning Power is mandated to assist or protect, such as the host nation, the civilian population or  public order (the threshold is again unclear). The second element of the test is whether internment is necessary to neutralize the threat posed. It was stressed that if the interpretation of “imperative reasons of security” as the permissible ground for internment is too wide, there is a risk of abuse. The security threat must be assessed on an individual basis and the decision to intern (as distinct from the decision to capture) must be taken at a sufficiently high level of command to allow for an adequate assessment of both the threat and the necessity to intern in light of the context and available alternatives.

I think a strong argument could be made that no one accused solely of “materially supporting” terrorism could be lawfully detained under these rules; Steve’s “active participation in hostilities” would seem to be the minimum required.  And even if some individuals accused of “material support” could be lawfully detained, I think it is inarguable that many of the activities that would qualify as material support under Humanitarian Law Project could never justify detention.

I don’t claim to have all the answers concerning detention in NIAC — it’s an incredibly complicated issue that does not admit of a categorical answer.  Unfortunately, if all you read was Wittes and Chesney’s post, you would think it’s obvious that IHL permits the U.S. government to detain anyone who materially supports terrorism.  After all, some unidentified federal judges agree with them that the TDRRA’s detention provisions are fine.

UPDATE: Bobby Chesney has responded to a similar post by Steve (both available at Lawfare), citing the D.C. Circuit’s panel decision in Al-Bihani as an example of a case in which a federal court has found that the laws of war authorize detaining individuals accused of material support in non-international armed conflict.  There are two problems, however, with relying on Al-Bihani.  First, the government accused Al-Bahani of being involved in the war in Afghanistan, which is an IAC, not a NIAC (see pp. 2-3).  Indeed, the expression “non-international armed conflict” appears nowhere in the decision.  Second, the D.C. Circuit explicitly stated that they were deciding the case on the basis of “the text of relevant statutes and controlling domestic caselaw,” not the laws of war (p. 7).  Al-Bihani thus quite literally says nothing about the relationship between IHL, detention, and non-international armed conflict.

It may well be that Wittes and Chesney agree with the D.C. Circuit that the laws of war have no bearing on the U.S. government’s authority to detain in NIAC — that even if IHL does not authorize states to detain individuals accused of material support in a NIAC, the U.S. government is free to detain them anyway as long as Congress approves it.  If so, they should say so openly.