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National Security Law Forecasting: The Prospect of Revived Habeas Litigation As the U.S. Draws Down in Afghanistan

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Tuesday, September 7, 2010 at 6:37 PM

We are in the midst of a protracted round of merits litigation involving the habeas corpus petitions of Guantanamo detainees.  The government has lost more often than it has won thusfar, but let’s not forget that it has indeed won in many instances: 16 so far.  It may be that some of those who lose on the merits in the habeas litigation nonetheless will be transferred back to their countries of origin at some point, or otherwise released.  It seems likely, however, that at least some of these individuals who have lost on the merits in the habeas process will remain in U.S. military custody for some time to come (whether at GTMO or elsewhere).  Let’s call that group the long-term population.  I have a prediction about them, something that will strike some as obvious but may come as a surprise to others.

Some may assume that a government victory in the current round of habeas litigation provides a lasting stamp of approval on the government’s detention authority in a particular case.  But I predict that the drawdown of U.S. forces in Afghanistan—currently scheduled to begin in July 2011—will precipitate a renewed round of habeas litigation in which members of the long-term population revive their objections.  In particular, they will argue that the end (or approaching end) of U.S. combat operations in Afghanistan unravels the legal foundation for their detention, and thus that the prior determination of their detainability no longer controls.

In support, the detainees will point to the following passage in Justice O’Connor’s plurality opinion in Hamdi v. Rumsfeld:

If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date [i.e., the summer of 2004]. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan.

That is to say, the detainees in that circumstance will argue that they were detainable in the first instance only by dint of the active combat operations underway in Afghanistan, and that the end of such operations removes the justification for referencing the law of armed conflict (“LOAC”) as a basis for reading detention authority into the AUMF.

How might the government respond?  First, it would argue first that LOAC continues to be relevant because the United States continues to be engaged in armed conflict with al Qaeda in general, even if combat operations in Afghanistan have ended. That is, it can advance what I described earlier as the broad understanding of the meaning of “armed conflict”—a view associated with the concept of a “global” war on terror in which the conflict is manifested only episodically and at least at times in unconventional ways.  But this view is deeply controversial.  Note that in his recent exchange with Ben, Kevin Jon Heller argued that Ben

believes the laws of war apply in Yemen no less than in Afghanistan or Pakistan, which is incorrect.

One might also want to look at Ken Anderson’s comments regarding the ICRC’s gravitation towards a geographically-bound conception of LOAC’s sphere of application.  Of course, controversy does not mean the argument won’t work.  The point is that even after eight years of habeas litigation (don’t forget that a handful of judges did have occasion to address the government’s detention authority even prior to 2008), we don’t know whether this interpretation of LOAC ultimately will be accepted by the courts.

Of course, a version of this same dispute is now underway in relation to the use of targeted killing.  In that context, Ken’s recent work responds to the geographically-strict approach to LOAC by pointing to “self-defense” as a LOAC-independent (and hence geographically more flexible) alternative framework of justification. Even if one accepts that move in the targeting debate, however, it is not clear that the same move carries over to the detention policy debate.  I can imagine the outlines of such an argument; it would surely have to do with the notion of the greater power to kill including the lesser power to detain.  But I’m not aware of such an argument being advanced on other occasions, and one cannot assume it would work here.

Just when this will arise is hard to say.  As current experience in Iraq illustrates, the fact of a drawdown—even one bolstered by an assertion of the end of combat operations—does not mean an end to combat.  But you heard it here first.  At some point along the spectrum running from the current level of combat operations in Afghanistan and the end of actual hostilities there, members of the long-term population will revive their habeas petitions in order to test the proposition that the legal justification for their detention has unraveled.