25 Sep Bobby Chesney Responds to My Post
Bobby Chesney has graciously responded at Lawfare to my post about detention in non-international armed confilct (NIAC). Unfortunately, I think Chesney’s response not only misconstrues what Steve Vladeck and I have been arguing, but also demonstrates some important misconceptions about IHL.
To begin with, we need to understand exactly what we are arguing about. As Steve pointed out in one of his early posts, Sen. Lindsey Graham’s proposed “Terrorist Detention Review Reform Act would permit 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. Steve’s criticism of the TDRRA focused on “stateside” detention — the detention of American citizens who are apprehended in the United States. He argued that the rules of IHL applicable in NIAC do not authorize such a broad detention power.
I would not have framed the argument that way, because it assumes that IHL applies to such detention in the first place. (More on that below.) Regardless, Chesney and Wittes responded to Steve by claiming that “[i]nsofar 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.” My post then addressed the claim that I believed was implicit in Chesney and Wittes’ response: namely, that the laws of war applicable in NIAC authorize the detention of at least some individuals who cannot be said to have directly participated in hostilities — i.e., those who are accused of at least some kinds of material support. I argued that, although IHL detention rules in NIAC are unclear (and may not even exist), even the most generous reading of those rules would not authorize the detention of individuals whose material support for terrorism does not rise to the level of what we normally think of as direct participation in hostilities (DPH).
Chesney now says I misunderstood his and Wittes’ argument:
We did not claim that the laws of war are best read as affirmatively conferring detention authority in the material-support scenario, still less that they obviously do so (personally, I think the laws of war are agnostic on the question of the substantive grounds for detention in a non-international armed conflict (“NIAC”). What we did argue is that courts have disagreed as to whether the AUMF already contains this authority–an admittedly minor point about which we were debating with Steve.
That is a misleading claim, as indicated by Chesney and Wittes’s response to Steve: “[i]nsofar 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.” That is a claim directed to what judges have said about IHL and detention in NIAC, not a claim directed to what judges have said about the AUMF. Indeed, Chesney admitted as much in a later response to Steve:
I take him to be arguing that the laws of war preclude detention in those circumstances. There certainly are many who advocate both those positions, and perhaps the Supreme Court ultimately will adopt one or both of them. Again, however, the judges in the meantime have divided on both points, with the most recent decisions in the D.C. Circuit and the Fourth Circuit cutting in the government’s favor.
To be clear, Chesney and Wittes are free to claim that IHL permits the stateside detention of individuals accused of material support because a few federal judges have taken that position. (Although I’m baffled by their argument, made a number of times in response to Steve, that the TDRRA cannot be described as a radical because its detention power has not been uniformly rejected by the judiciary.) They are also free to claim that IHL is irrelevant to the TDRRA because, as a matter of domestic law, the government is free to detain anyone it wants as long as it has Congressional authorization to do so. But they should make clear which claim they are endorsing.
In any case, immediately after claiming that I “incorrectly attribute[d]” an IHL claim to them, Chesney then says they did, in fact, make a claim about IHL:
We did also have something separate to say about the laws of war in that prior post, though again it wasn’t the view that Heller attributes to us. Specifically, we argued against the claim that the laws of war require the equivalent of the DPH standard (i.e., direct participation in hostilities) as a necessary condition for detention (in the NIAC setting or otherwise).
To recap: I claimed that Chesney and Wittes were arguing that IHL authorized the detention of individuals in NIAC whose material support for terrorism did not rise to the level of direct participation in hostilities; Chesney now says that he and Wittes were arguing that IHL did not limit the detention in NIAC to individuals whose material support for terrorism did not rise to the level of direct participation in hostilities. That is a distinction without a difference — unless, of course, Chesney and Wittes do not believe that IHL applies to the TDRRA at all, in which case whether IHL authorizes its detention regime or imposes limits on it is irrelevant.
Again, Chesney and Wittes are free to argue that it’s irrelevant whether IHL in NIAC authorizes detaining individuals accused of materially supporting terrorism — that, in other words, the TDRRA’s detention power is solely a creature of domestic law and is thus subject solely to international human-rights law. But that does not seem to be what they want to do. Instead, they appear want to make the argument that the TDRRA’s stateside detention regime is, in fact, consistent with the rules of IHL that apply in NIAC.
That argument, of course, requires them to establish two things:
 That IHL applies to individuals detained in the US on the ground that they are involved in a NIAC.
 That the rules of IHL in NIAC justify detaining individuals accused of material support for terrorism.
Chesney and Wittes have not yet addressed the first question. There are only two possible answers: (1) the U.S. is involved in some amorphous global NIAC with al-Qaeda, so the rules of IHL in NIAC apply wherever anyone associated with al-Qaeda operates; or (2) the rules of IHL in NIAC apply to members of al-Qaeda located outside of the current NIACs in Afghanistan and Pakistan, because those individuals are either members of an “organized armed group” involved in one of those NIACs or, through their material support, can be considered to be directly participating in one of them. Which answer do Chesney and Wittes defend? I think the first answer is ridiculous (and no IHL scholar outside of the U.S. has ever taken it seriously). The second answer’s “membership” prong seems difficult to defend, because I don’t see how (for example) providing funds to a terrorist group makes you a member of that group. (Were Irish-American financiers of the IRA “members” of the IRA that Britain could have detained or assassinated?) The “DPH” prong of the second answer thus seems to me to be the only plausible explanation of how the rules of IHL in NIAC could apply to individuals in the U.S. accused of materially supporting terrorism.
Again, Chesney and Wittes simply avoid this question. Indeed, Chesney doesn’t seem to understand that if you are going to invoke IHL to justify detention, IHL has to apply in the first place. Hence this comment:
The DPH standard is of course the legal standard for targeting civilians with lethal force. But no treaty instrument makes it a detention standard in either the IAC or NIAC setting, nor am I aware of evidence that states have employed it in that manner out of a sense of legal obligation so as to generate a customary norm on this point.
DPH is, of course, the standard for intentionally targeting civilians period, not simply with lethal force. Regardless, the point is that, unless Chesney and Wittes believe that individuals in the U.S. who materially support terrorism can be considered members of the al-Qaeda groups operating in Afghanistan and Pakistan, IHL only applies to those individuals if they directly participate in hostilities there. Hence the argument — which Chesney misunderstood — in my previous post about the importance of DPH.
The failure to recognize the importance of DPH to the applicability of IHL in NIAC is even more evident in this comment by Chesney:
Consider the situation in Iraq in, say, 2007. Let’s say that there is an individual whom the U.S. and Iraqi governments believe is a key logistics figure in AQI or some other insurgent force, but who cannot be said to have personally participated, even at one step removed, in violent activity. And let’s assume further that because of intimidation or otherwise, a prosecution in an Iraqi court just isn’t likely. Either “active participation” will have to be defined broadly to encompass this scenario, or else the active participation standard would seem to preclude the U.S. or Iraqi governments from taking the person into custody.
More simply put: the rules of IHL in NIAC should apply, according to Chesney, to someone who doesn’t satisfy the DPH standard (or, presumably, the higher membership standard) if a government doesn’t believe that its domestic law make his detention sufficiently easy. It doesn’t take an IHL scholar to see the problems with that argument. IHL applies only if conflict is sufficiently intense and organized to qualify as a NIAC. Period. There is no “weak domestic law” exception to that fundamental requirement. And even if a NIAC exists, IHL applies to individuals located outside the battlefield only if they are members of an organization involved in that NIAC or are directly participating in hostilities there.
The real question, in short, is whether individuals in the U.S. accused solely of materially supporting terrorism can be considered members of al-Qaeda in Afghanistan or Pakistan (where there are NIACs to which the rules of IHL apply) or can be considered to be directly participating in those conflicts. I’m skeptical. I could probably be convinced that individuals who recruit individuals to fight in Afghanistan or Pakistan qualify. But funders? Members of the ICRC who train al-Qaeda in the rules of IHL? Lawyers who write briefs on behalf of individuals accused of membership in al-Qaeda? It’s not enough to claim, as Chesney does, that “we should exclude such unrealistic scenarios as the brief-writing lawyer” from the detention power in the TDRRA. The fact remains that the Act does not exclude them.