A quick thought in response to the very interesting exchange underway between Ben and Kevin (the most recent contribution to it is here). In an update to an earlier post, Kevin writes:
Ben is quite right — when it comes to actual detention decisions, U.S. courts rely solely on the AUMF. But he once again fails to acknowledge that the NYT editorial wasn’t talking about the AUMF. As I noted, the editorial specifically addressed the Obama administration’s claim that the law of war justifies Warsame’s detention. Indeed, “AUMF” appears nowhere in the editorial. Ben is certainly entitled to think that the NYT’s editorial is pointless or irrelevant or uninteresting. In fact, I’d be inclined to agree, given that the U.S. has long since abandoned any real interest in taking the law of war seriously when it comes to detention authority under the AUMF. But he is not entitled to claim that the editorial is wrong — because it’s not. The law of war does not apply to Warsame’s detention, much less justify it.
Let’s assume for the sake of argument that Kevin is correct–i.e., that the detention of Warsame has no adequate connection to any state of armed conflict such that the law of war becomes relevant to it. What follows from this?
By definition, it would not follow that the detention of Warsame violates the law of war. One might argue instead that absent the law of war being relevant, the AUMF should be construed as not providing detention authority, making the issue go away. But the premise of this hypothetical discussion is that the D.C. Circuit is willing to sustain detention authority under the AUMF in any event. So let’s think through what would be left to argue about in that scenario.
Might some other body of international law supply a constraint on the otherwise naked AUMF? Some might argue that IHRL would then come into play (some would argue it should come into play anyway), and in particular that the ICCPR’s prohibitions on arbitrary detention would render (sorry, no pun intended) the two-month period of detention unlawful. But the US position has long been that the ICCPR has no extraterritorial application. I’m well aware of the debate associated with that claim, but the important point for present purposes is that US government is exceedingly unlikely to treat the ICCRP as relevant to a situation such as the Warsame detention, and no court in the US is likely to hold otherwise (though I will say that the on-ship nature of the detention makes this a more complicated scenario for purposes of the extraterritoriality analysis than would be the case with, say, the DFIP in Afghanistan).
This state of affairs, it is worth noting, would have implications for interrogation law. Common Article 3 would not apply, and the War Crimes Act would no longer be relevant either. What would be left? The Torture Act would still apply, but by definition concerns only torture and not CID treatment falling short of torture. The remaining limitations for the CID scenario would be, I suppose, the McCain Amendment in the Detainee Treatment Act of 2005 (which lacks criminal sanction) and the currently-applicable executive order on interrogation standards. That’s not nothing, of course, but it’s not quite the same as Common Article 3 plus the War Crimes Act.