Thursday, April 23, 2009
Judge Reggie B. Walton (D.D.C.) yesterday issued a memorandum opinion in a consolidated case of Guantanamo detainees that adopted the Obama administration's recently suggested and refined standard of detention for detainees at Guantanamo Bay. (I previously posted on this here and here.)
In an opinion that expressed frustration that the law regarding the President's detention authority is still unsettled, Judge Walton ruled that the AUMF provided the President with authority to detain individuals at Guantanamo Bay and that the President's suggested standard of detention comported with the law of war.
Judge Walton's opinion suggests that the important difference between the Bush administration's standard for detention and the Obama administration's standard is the Obama administration's elimination of the phrase "enemy combatant," which, in turn, was based upon the Obama administration's analysis of its authority under the laws of war. (Recall that the Obama administration merely replaced a standard that authorized the detention of an individual who "supports" an enemy organization with a standard that authorizes the detention of an individual who "substantially supports" an enemy organization.) Walton:
The petitioners' reliance on the standards governing international armed conflict is understandable given the government's longstanding justification of its detention of the petitioners on the grounds that they were "enemy combatants." This term has meaning under the Geneva Conventions only insofar as it is construed as a subset of "prisoner of war" status, which the Third Geneva Convention defines at length. . . . Status as a "combatant" is actually a privilege--"the right to participate in hostilities"--to be earned through fidelity to the requirements of Article 4.
At least for those petitioners detained due to their associations with terrorist organizations like al-Qaeda, there is little question that such individuals fail to satisfy these requirements. . . .
Thus, under the combatant/civilian distinction formerly drawn by the government, the petitioners would appear to fall under the rubric of "civilians." And as civilians, the petitioners would not be subject to military force "unless and for such time as they [took] a direct part in hostilities."
But the government no longer seeks to detain the petitioners on the theory that they are "enemy combatants" . . . .
Gherebi, at 34-37. Instead, the government may detain members of an enemy force in a transnational conflict:
And the absence of any language in Common Article 3 and Additional Protocol II regarding prisoners of war or combatants means only that no one fighting on behalf of an enemy force in a non-international armed conflict can lay claim to the protections of such status, not that every signatory to the Geneva Conventions must treat the members of an enemy force in a civil war or transnational conflict as civilians regardless of how important the members in question might be to the command and control of the enemy force or how well organized and coordinated that force might be. . . .
Common Article 3 is not a suicide pact; it does not provide a free pass for the members of an enemy's armed forces to go to and fro as they please so long as, for example, shots are not fired, bombs are not exploded, and planes are not hijacked. Consistent with Common Article 3 and Additional Protocol II [and as authorized by the AUMF], the President may detain anyone who is a member of the "armed forces" of an organization that "he determines planned, authorized, committed, or aided" the 9/11 attacks, as well as any member of the "armed forces" of an organization harboring the members of such an organization.
Gherebi, at 38-43.