May 19, 2009
Judge Bates: No Detention Based Merely On "Substantial Support"
Judge John D. Bates (D.D.C.) ruled today that the government lacks authority to detain individuals in the global struggle against terrorism based merely upon their "substantial support" of Taliban, al Qaida, or associated forces or merely upon their "direct support" in aid of such forces.
Bates's ruling comes in response to the Obama administration's refined position on detainable individuals, filed with the court on March 13. Under the Obama administration's preferred definition, the government would have had authority to detain not only those who "planned, authorized, committed, or aided the terrorist attacks" of 9/11 and anyone who harbored them, but also those who "substantially supported" Taliban, al Qaida, or associated forces and those who "directly supported hostilities" in aid of those forces. In a separate case, Judge Walton (D.D.C.) previously approved the administration's preferred approach in its entirety.
Bates concluded that the government had authority under the AUMF and the laws of war to detain those who "planned, authorized, committed, or aided the terrorist attacks" for the same reasons that Walton so concluded.
But Bates broke with Walton on the "substantial support" component and ruled that the government lacked authority under the AUMF and the laws of war to detain those who merely "substantially supported" Taliban, al Qaida, or associated forces, or those who "directly supported" hostilities in aid of such forces. Bates suggested that allowing the administration to detain these individuals may run afoul of separation-of-powers principles (because the President would be operating beyond Congressional authorization and outside the laws of war) and nondelegation principles (because the administration's preferred interpretation would have meant that the AUMF was too vague and left the administration to make law).
Bates minimized the differences between his ruling and Walton's, however, writing that those detained based merely on "substantial support" or on "direct support" would likely also be detainable as "part of" a covered organization.
Bates's ruling didn't apply his revised definition to the detainees in the case, so we don't know yet how it'll play out--and whether he's right that the differences won't matter in practice. In theory, though, Bates's ruling represents a significant difference in its application of principles of international law, its reading of the AUMF, and its sensitivity to separation-of-powers concerns.
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