Saturday, March 21, 2009
Lawyers for a group of detainees yesterday filed a Replyto the administration's definition of detainable individuals under the Authorization for Use of Military Force and international law. Many thanks to Lyle Denniston at SCOTUSblog for the tip and for posting the Reply.
The administration filed its Memo last Friday, March 13, "refining" its position on detainable individuals. (My original post is here.) In that Memo, the administration claimed authority to detain individuals under the AUMF and international law--and notably not under inherent Article II authority--but defined detainable individuals in almost precisely the same terms as the Bush administration used to define "enemy combatant":
The President has authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.
The administration claimed authority to detain individuals who meet this definition based on the AUMF and international law, but the latter adjusted somewhat for the "novel type of armed conflict against armed groups such as al-Qaida and the Taliban." The administration meant, of course, that al-Qaida and the Taliban are not states, and that the effort against them is not a conventional war. The administration argued that "[p]rinciples derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict" and that "[t]he President also has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable."
This adjustment--relying upon the "principles derived from law-of-war rules"--is at the heart of petitioners' objections. Petitioners argue that the administration's definition exceeds its authority under the AUMF and international law, because it permits detention where international law would not. (Petitioners argue that the AUMF says nothing about detention, but that the Hamdi plurality ruled that detention under the laws of war was implicit in the AUMF. Moreover, Hamdi and Hamdanboth gave narrow interpretations to the AUMF, holding the executive to existing law of war.) Thus petitioners argue that the law of war allows detention only for members of state armed forces (based merely on their status--their membership in a state armed force) and non-member "unlawful combatants" (based on their conduct--their active and direct participation in hostilities). But the administration's definition allows the President to detain unlawful combatants merely because of their status, not because of their conduct. This mix-and-match of detention rules under the law of war amounts to a rewrite of the law of war and is outside the President's authority under the AUMF.
The court's decision will turn on just how much leeway it's willing to give the President under the AUMF and international law and whether the President's proposed definition--based on "principles derived from law-of-war rules"--is close enough to detention rules under international law. We'll keep you posted.