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Friday, November 04, 2011

Bobby Chesney on Me on the NDAA

Over at Lawfare, Bobby Chesney has a very thoughtful (and thorough) reply to my ACSblog guest-post from earlier this week about the troubling detention provisions of the National Defense Authorization Act--and why section 1031 (clarifying the government's detention authority) is at least as important as the far-more-discussed sections 1032 (mandatory military custody) and 1033 (bar on transfers). I think it's safe to boil Bobby's reply down to three points: (1) that the concern I raised about the NDAA applying to a whole host of terrorist organizations far afield of al Qaeda and its close affiliates only applies if courts misread the text of the NDAA; (2) that the concern I raised about authorizing detention beyond what's been recognized under IHL depends on assumptions about IHL that may not be true; and (3) that the language concerning detention of U.S. citizens may well do exactly what I said it does, but then the question should be whether or not that's a good thing.

On the third point, I think we're on the same page: let's all just admit that 1031(d) would authorize the detention of U.S. citizens and LPRs within the territorial United States, and fight about whether we're okay with that. Something tells me that members of Congress might react differently if this understanding were clearer on the face of the statute. And on the first point, I think it boils down to how comfortable one is with ambiguity. Bobby may have more faith than I do that the D.C. district court (and, given its track record, the D.C. Circuit) will read this language narrowly... 

But the key to me is the second point: whether authorizing detention based on "direct support" would somehow contravene IHL.

Bobby is surely right that IHL is not a model of clarity on this point, even if we could agree whether ordinary rules governing international armed conflicts (IAC) apply to the non-international armed conflict (NIAC) with al Qaeda et al. (and good luck getting folks to agree on that point). But to me there is a world of difference between detention based on membership and that based on what Bobby calls "non-member support." And although the Administration and the D.C. Circuit have consistently blurred this distinction, the district courts haven't. Consider, in that vein, this discussion by Judge Bates in Hamlily, in specific regard to the so-called "March 13" definition:

although this concept may be attractive from a policy perspective, and indeed could be the basis for the development of future domestic legislation or international law, there is at this time no justification-in the AUMF or the law of war-for such an approach. The law of war permits detention of individuals who were “part of” one of the organizations targeted by the AUMF. That is the outer limit of the Executive's detention authority as stated in the AUMF and consistent with the law of war. Detaining an individual who “substantially supports” such an organization, but is not part of it, is simply not authorized by the AUMF itself or by the law of war.

Bates went on to explain that support might help to establish de facto membership; the key, though, was that support by itself wasn't enough.

To be fair, the D.C. Circuit has shown nowhere near this kind of nuance in its discussion of the detention standard. Then again, as Bobby himself points out, there hasn't been a case in the D.C. Circuit to date in which the court rested the government's detention authority on support, rather than membership--so all those discussions are dicta. Bobby may well be right that "the new statute if adopted would resolve the issue legislatively rather than judicially. That could be a feature rather than a bug of 1031(b)(2), however, in terms of which bodies ideally should be responsible for deciding whom the US should categorize as detainable." Whereas reasonable people may disagree about the institutional competence issue, my point is only that, whether one agrees or disagrees with the wisdom of such a legislative development, it's a very big deal--and worth more attention than it has thus far received.

Posted by Steve Vladeck on November 4, 2011 at 09:45 AM in Current Affairs, Steve Vladeck | Permalink


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I did not say that IHL does not apply in NIAC. What I said is that there are no IHL rules in NIAC that specifically address the power to detain. (CA3 simply requires anyone who is detained to be treated humanely.) Some scholars derive detention rules by analogy to IAC (such as Ryan Goodman). Others say that those rules come from IHRL and domestic law (such as Rona).

Posted by: Kevin Jon Heller | Nov 5, 2011 8:15:47 PM

Thanks. Your explanation does clear it up for me a lot. I understand what you arguing with respect to being a member of an organized armed group as opposed to being a citizen who DPHs. However I had always thought (and I am not an international law expert) that IHL DID apply to NIAC through Common Art. III. Is there any succinct source you can send me to that establishes that a NIAC is not part of IHL but only part of IHRL? Thanks.

Posted by: adjunct law prof | Nov 5, 2011 7:11:37 PM


Sorry, I should have been clearer. I agree with Gabor that detention in NIAC is governed by IHRL, not by IHL. My point was that, if we are going to analogize between IAC and NIAC -- which we shouldn't, and which the U.S. does only insofar as it maximizes their targeting and detention authority -- we at least have to take the analogy seriously. Members of the armed forces and civilians are not equally detainable in IAC; they should not be equally detainable in NIAC, either. So the only individuals detainable in NIAC for the duration of the hostilities -- without a showing of continued dangerousness, without periodic review -- should be members of organized armed groups, as opposed to civilians who DPH. My point was that the U.S approach to membership in an organized armed group is fatally overbroad relative to IHL, because it does not limit membership to individuals who assume a CCF. Instead, it expands the category of membership to include anyone who provides an armed group with "direct support," a meaningless concept under IHL.

Posted by: Kevin Jon Heller | Nov 5, 2011 5:37:18 PM

I am trying to understand and reconcile what Kevin and Gabor are saying with Bobby's prior posts. If I understand correctly, Kevin is saying that in a NIAC, we can detain 2 groups of people (members who perform a continuous combat function and civilians who DPH) but that the rules are more restrictive for the former. Gabor seems to be saying that in a NIAC, we can only detain civilians, as rebels are always civilians. And that criminal law provides the legal rules for a NIAC, meaning there can be no status detention at all. Kevin, do you agree with Gabor? It seems you are saying that in a NIAC we can have status detention but that the rules are just different between those who are true members and perform a CCF compared to civilians who DPH. And Gabor, under your understanding of a NIAC, we can only detain people if we charge them with crimes? I always thought we could also detain in a NIAC civilians for security reasons . . .

Posted by: adjunct law prof | Nov 5, 2011 9:20:49 AM

I'm posting the below on behalf of Gabor Rona, from Human Rights First.
Hi Steve,

You will not be surprised that I think your assessment is way closer to the mark than Bobby's, but I think it does the universe of applicable legal frameworks an injustice to assume that the international legal inquiry about NIAC detention begins and ends with IHL. (Bobby apparently does assume so, I don't know if you do).

The logical starting point isn't "why doesn't the IHL of NIAC articulate grounds and procedures for detention?" The logical starting point is "why does the IHL of IAC do so?" Answer: because privileged belligerents should be captured and detained rather than killed, if possible (not necessarily a legal requirement, but a nice, and sometimes obligatory thing) but criminal law cannot be a basis for detention of privileged belligerents, except if they commit war crimes. This problem doesn't arise in NIAC since rebels, lacking a privilege of belligerency, are per se criminals. That's why the IHL of NIAC doesn't do what the IHL of IAC does do for detention. This is not a flaw, it is a deliberate and logical part of the design.

Another part of the design is the application of human rights law. In fact, the preamble of AP II is explicit about the continued application of human rights treaties in NIACs to which the Protocol applies. I believe that Bobby, like many supporters of the US status quo, rejects the application of ICCPR judicial guarantees to NIAC detention, but most of the rest of the world, as you know, accepts lex generalis application of human rights law where the lex specialis (IHL) is silent.

Another thing that affects detention and that is not explicit in the IHL instruments of NIAC is the scope of contexts to which the IHL of NIAC applies. Here, too, the US takes a strained, overbroad view that is rejected by most US allies.

Bottom line, yes, IHL taken alone is not a model of clarity. But if one understands the universe of applicable legal frameworks the way most of the world understands them, there is much less mystery and for that matter, little room for the detention regime that has grown up in post-9/11 America.

Posted by: Steve Vladeck | Nov 4, 2011 10:47:12 PM


It is also critical to keep in mind that "membership" in an organized armed group means something completely different under IHL than it does under DC Circuit jurisprudence. IHL in non-international armed conflict (NIAC) limits membership in an organized armed group to individuals who assume a "continuous combat function" in the group -- individuals whose role in the group is functionally similar to a solider in government armed forces. Everyone else -- those who sporadically support an organized armed group, those who do not have a combat function, etc. -- are considered civilians who directly participate in hostilities. IHL may authorize the detention of civilians in NIAC, but the rules governing that detention are different (and more restrictive) than the rules governing members of organized armed groups.

The DC Circuit and Bobby ignore the distinction between membership and direct participation in hostilities, treating anyone who "directly supports" al-Qaeda -- whatever that means -- as a member of al-Qaeda for detention purposes. That is clearly incorrect from an IHL perspective.

Posted by: Kevin Jon Heller | Nov 4, 2011 10:36:50 PM

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