Judge Randolph Pulls Another Fast One--But Will Anyone Notice?

Tuesday's decision by a D.C. Circuit panel (Henderson, Williams, Randolph) to vacate and remand the grant of habeas relief in Hatim v. Gates is hardly surprising.  As the per curiam opinion notes, there have been a number of D.C. Circuit decisions since the district court ordered Hatim's release that call at least some of the trial court's analysis into question. So reconsideration in light of these intervening decisions seems, at first blush, totally uncontroversial.

Buried in the three-page order, however, is a critically important--and dangerously wrong--holding that will likely prejudice Hatim's case on remand (and any number of cases to follow).  Here's the relevant language:

The district court ruled that the military could detain only individuals who were “part of” al-Qaida or the Taliban; and that Hatim did not fit that description. That ruling is directly contrary to Al-Bihani v. Obama, which held that “those who purposefully and materially support” al-Qaida or the Taliban could also be detained. Hatim admits the error, but says it was harmless. We cannot see how. As the district court stated in issuing the stay, Al-Bihani “calls into question” a “key determination[ ]” upon which the order rested.

Just to be clear, the key here is the notion that anyone who "purposefully and materially support[s]" al Qaeda or the Taliban can be detained indefinitely, whether or not they're in any way affiliated with either group, and whether or not they come anywhere near the definition of a "belligerent" under international humanitarian law. (After all, the famous "little old lady in Switzerland" who gives money to certain Islamic charities may be materially supporting al Qaeda...)

Suffice it to say, it's an amazingly broad--and momentous--holding. So what? Well, (1) the Obama Administration has never affirmatively argued in a habeas case that the scope of the AUMF should be understood by reference to the MCA; (2) such a conclusion was, at best, dicta in Al-Bihani (which is why the district court in Hatim said Al-Bihani only "call[ed] into question" Hatim's argument, rather than foreclosed it); and (3) there is clear and compelling evidence that, dicta or not, Al-Bihani's analysis on this issue was just plain wrong.

More on (2) and (3) below the fold...

Al-Bihani and the Dangerous Conflation of the AUMF and the MCA

The heart of the Hatim panel's "purposeful and material support" holding is borrowed from this discussion by Judge Brown for herself and Judge Kavanaugh in Al-Bihani (my emphasis added):

The AUMF authorizes the President 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.” The Supreme Court in Hamdi ruled that “necessary and appropriate force” includes the power to detain combatants subject to such force. Congress, in the 2006 MCA, provided guidance on the class of persons subject to detention under the AUMF by defining “unlawful enemy combatants” who can be tried by military commission. The 2006 MCA authorized the trial of an individual who “engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” . . . The provisions of the 2006 and 2009 MCAs are illuminating in this case because the government's detention authority logically covers a category of persons no narrower than is covered by its military commission authority. . . . [F]or this case, it is enough to recognize that any 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. 

In short, Al-Bihani read the definition of who can be tried under the MCA as expanding, albeit sub silentio, the scope of detention authority under the AUMF.

There are two problems with this view: First, it doesn't follow logically that those who can lawfully be tried by a military commission are a subset of those who can be lawfully detained without trial. Under IHL, these are two very different categories of detainees, whose status presents two distinct sets of questions. Second, even if that conclusion could follow as a matter of logic, it is abundantly clear from the MCA's legislative history that Congress in no way meant or intended to impact the substantive scope of the AUMF through its definition of who could be tried by a military commission. Quite to the contrary--the House Armed Services Committee's report accompanying the MCA expressly notes that the divergence between the AUMF and MCA definitions reflected the committee's disagreement that "the United States must be engaged in armed conflict to try an alien unlawful enemy combatant engaged in hostilities against the United States." That is, the difference was a deliberate choice to reflect the different standards and rules applicable to military trials vs. noncriminal detention under IHL. Thus, it's not only a logical fallacy to read the MCA as expanding the scope of the AUMF's detention authority; it runs directly counter to the intent of those who wrote the latter statute.

The AUMF/MCA Conflation as Dicta

Judge Brown's logical fallacy notwithstanding, one might still conclude that the Hatim panel was bound to follow this discussion. Except that it's clear that this point was dicta in Al-Bihani, since the panel there concluded that Al-Bihani was clearly "part of" al Qaeda, mooting the question of whether he could be detained simply because he provided "purposeful and material support" thereto. 

Nor should it surprise anyone that Al-Bihani is full of inconvenient dicta. Judge Williams' concurrence in that case made exactly that point. And the D.C. Circuit all-but went en banc to overrule (or, at least, dicta-ize) one of the panel's other holdings--i.e., that the laws of war have no bearing on the scope of the government's detention authority under the AUMF. 

Thus, Hatim was not merely "following" Al-Bihani; it converted wholly unnecessary (and woefully incorrect) dicta into a holding, and without anything in the way of analysis. Moreover (and this is key), Judge Brown's reliance on the MCA in Al-Bihani came only after she rejected the Obama Administration's argument that the scope of the AUMF should be understood by reference to international law--that is, the conflation of the AUMF and the MCA necessarily followed upon her rejection of international law as the relevant constraint, a position that was itself dismissed by the rest of the D.C. Circuit in the non-en banc manuevering last August. So to reaffirm that logic (as the Hatim panel did) after its necessary predicate (Al-Bihani's holding vis-a-vis international law) had been vitiated is even less convincing than the original holding might have been on its face.

So this leads to my real question: As it becomes increasingly clear that a small but vocal minority of the D.C. Circuit (Judges Brown, Kavanaugh, and Randolph, in particular) will apparently find any way in any case to adopt holdings that (1) go beyond even what the government is asking for in these cases (see, e.g., Randolph's lament about the standard of review in Al-Adahi); and (2) are indefensible as a matter of law and logic, is anyone else on that court going to notice?

Don't get me wrong--the answer in Hatim's case may end up being the same. And the other judges of the D.C. Circuit may well reach the same results in these cases as their more aggressive colleagues. But my gripe is not about the merits; it's about the indifferent attitude that the rest of the court seems to have toward the analysis being deployed by these three jurists, and the damage that is being done to the substantive and procedural law governing detention going forward. The more these decisions pile up, the more a pattern is developing in which panels that include one or more of Judges Brown, Kavanaugh, or Randolph find seemingly uncontroversial ways to reach sweeping new holdings that have dramatic effects on the shape of the law. And if the Supreme Court isn't in a position to say anything about it, that leaves the other seven active judges of the D.C. Circuit. Let's just hope they're paying attention...

---

Update: A helpful reader pointed me to even more specific language in the 2009 MCA's "conference" report (of which I was unaware), which provides that the statute's definition of who may be tried "is included for the purpose of establishing persons subject to trial by military commission in accordance with section 948c, of title 10, United States Code, and is not intended to address the scope of the authority of the United States to detain individuals in accordance with the laws of war or for any other purpose." If this doesn't prove how wrong Al-Bihani is on this point (and how wrong Hatim is to adopt it sans analysis), I'm not sure what will.

Even worse, imagine the implications of a world where anyone who "purposefully and materially supports" al Qaeda could be detained indefinitely at Guantanamo or elsewhere... I dare say that there's a pretty good reason why neither the Obama Administration nor any judge (other than Brown, Kavanaugh, and now Randolph) has ever argued for a standard so completely divorced from the laws of war.