As noted previously, I testified in late July before House Armed Services regarding detention policy, with a focus on the Warsame situation. I’ve seen received a handful of QFRs from committee members, and thought readers might be interested in seeing what I had to say in response (especially since QFRs and responses aren’t often widely circulated). Nothing really novel here, but I talk about our dwindling arry of detention locations, the problems Congress causes by tying the president’s hands, AUMF renewal, and related matters:
Responses to Questions for the Record
Charles I. Francis Professor in Law
University of Texas School of Law
September 14, 2011
“Ten Years After the Authorization for Use of Military Force:
Current Status of Legal Authorities, Detention, and Prosecution in the War on Terror”
Hearing Before the House Armed Services Committee
July 26, 2011
Question for the Record from Congressman K. Michael Conaway (TX-11)
As we draw down in Afghanistan and Iraq, the case of Ahmed Abdulkadir Warsame is an indication of how the U.S. government will encounter terrorists in the future. In the case of Warsame, the U.S. military did not apprehend Warsame on the battlefields of Afghanistan or Iraq but instead in the Gulf of Aden off the coast of Africa. By all accounts, Warsame provided valuable intelligence information during his interrogations, but due to his terrorist connections, it was impossible for the U.S. military to simply let him go.
1. After intelligence collection interrogations are over, what can the U.S. do with terrorist suspects who were detained outside of Iraq and Afghanistan?
One option, not available in all cases, is to detain terrorism suspects in military custody under color of the law of armed conflict (“LOAC”), without criminal charge. This option by definition is available only where LOAC actually applies. There is, unfortunately, sharp dispute as to where if at all LOAC applies in connection with captures that occur outside of combat zones such as Afghanistan. One extreme in that debate holds that LOAC has no application whatsoever except in the geopolitical boundaries of states in which conventional combat is occurring. The other extreme holds that the LOAC applies wherever in the world one might find a person who has some kind of connection – membership, perhaps even independent support?—to a group that is in some fashion party to an armed conflict. In between, one finds positions such as the view that geography is irrelevant for leaders and other group members whose activities have an impact within the recognized war zone. For better or worse, few of the GTMO habeas cases have given courts occasion to weigh in on this issue in a manner that could settle it going forward. But there has been at least one such case: the detainees in the Boumediene litigation were originally captured in Bosnia, well away from any overt hostilities in Afghanistan, and the courts have thusfar approved the military detention of one of them despite this geographic disconnect. In his case, the conduct making him eligible for detention had to do with efforts to recruit fighters for the combat zone.
Even if the military detention option is available for non-combat zone captures in some cases, however, that does not mean that it is available for just any terrorism suspect. The more remote the fact pattern is from al Qaeda, the less likely it is that this option will be available. Nor is it an option for the executive branch to simply assert the authority in any event in dubious cases, at least not for the long term; it is more likely than not that a person in this fact pattern will be entitled to habeas review in a federal court, no matter where they might be held.
In any event, criminal prosecution of course is a significant alternative. Military commissions are an option under this heading if and only if the individual comes within the scope of the personal jurisdiction provision of the Military Commissions Act of 2009. Under that statute, a commission has personal jurisdiction only over an “alien unprivileged enemy belligerent.” The MCA defines “unprivileged enemy belligerent,” in turn, as a person who does not belong to any of the eight categories listed in Article 4 of the Third Geneva Convention—the categories defining eligibility for POW status in international armed conflict—and who:
(A) has engaged in hostilities against the United States or its coalition partners;
(B) has purposefully and materially supported hostilities against the United States or its coalition partners; or
(C) was a part of al Qaeda at the time of the alleged offense under this chapter.
One can readily imagine Warsame-type fact patters that simply do not qualify under these standards, as well as situations (possibly like Warsame’s own scenario) in which the task of producing evidence in court to satisfy these standards would require the government to go public with intelligence that it would much prefer to keep secret.
And then there is the option of a civilian criminal trial. The question here is not one of “personal jurisdiction,” but simply whether the person has in fact committed a federal crime. There are, as it happens, a great many federal crimes relating to terrorism that are now applicable to noncitizens acting abroad, including both the 1994 and the 1996 material support statutes.
2. If the U.S. and Guantanamo Bay are deemed unviable options, where can (should) these types of terrorist suspects be held as they away their trial by military commission?
If we begin from the premise that neither the United States nor GTMO may be used as the location for detention (of whatever variety), the options are slim.
Option 1 is to attempt to bring the individual to Afghanistan. There are several problems with this. First, it is not as if we have complete discretion to bring persons from abroad into custody in Afghanistan. A combination of diplomatic and other considerations may forbid this in actual practice in some cases. Second, our detention facilities in Afghanistan are no more likely to be permanent than were the facilities we used to run in Iraq; even if you can use this option this year, in short, you probably will not have the option two or three years from now, at which point you must find an alternative after all.
Option 2 is to keep the individual aboard ship. As explained in my original testimony, this is a controversial measure to say the least, and would certainly not be lawful in an international armed conflict. The law is much less determinate on this question with respect to non-international armed conflicts, though I am confident that there would be fierce criticism on both policy and legal grounds were this to be attempted for more than temporary detention purposes.
There are no other obvious options if U.S-based and GTMO-based detention are excluded, except perhaps temporary custody in the hands of a cooperative third-party state.
Question for the Record from Congressman Adam Smith (WA-09)
1. Please discuss how habeas case law impacts authorities under the AUMF, including targeting.
Much of the GMTO habeas caselaw concerns either the process of he habeas proceedings themselves or the sufficiency of the evidence in particular cases. But there also are opinions that speak directly to the interpretation of the AUMF. Specifically, there are cases that address which groups fall within the scope of the AUMF, and also what conduct or associations suffice to render a particular individual so connected to an AUMF-covered group as to make the AUMF relevant for that person.
The interesting question this raises is whether these holdings have an impact on other activities, unrelated to GTMO, that the U.S. government undertakes under color of the AUMF. The possibilities include both detention and the use of lethal force, whether in Afghanistan or anywhere else in which an AUMF-related target might become the target of an attempted capture or a lethal strike. In theory, this caselaw should indeed matter for judge advocates and other government attorneys who may be in the position of advising military or civilian officials on the legal boundaries of detention and targeting authority in such circumstances. If a federal court has held in any context that the AUMF does or does not reach some particular group, or does or does not encompass some particular individual fact pattern, this could hardly be dismissed as irrelevant when the exact same question arises in the field; the fact that this other circumstances is not likely to come up for habeas review does not change this, though of course it impacts the likelihood that an outside authority will step in to impose checks on the government’s course of action. Having said all that, I’m not in a position to say whether this theoretical point is observed in actual practice.
2. Please discuss the pros and cons with holding Article III proceedings at Guantanamo Bay.
The primary advantages of holding a civilian criminal trial at GTMO are that it would (i) pose less risk that a detainee upon acquittal or release from custody would succeed in litigation challenging that person’s removal to their country of origin or some other country, and (ii) spare communities in the United States from whatever expenses, disruptions, and security risks might follow from convening various trials on the mainland. The primary disadvantages are that (i) the choice of the GTMO location would, fairly or not, tarnish the perception of legitimacy that otherwise would attach to the prosecution (though not necessarily a great deal), (ii) difficult question would arise with respect to impaneling a jury (though not necessarily insurmountable ones, as there is a sizeable community living at GTMO and it is not automatically the case that all or even most residents would be disqualified from service), and (iii) this presumably would require creation of a new federal judgeship and, hence, the “mother of all confirmation hearings” as I put it during my spoken testimony.
3. In your opinion, are there any remaining gaps in the legal framework for detainees? If so, please describe those gaps and your recommendations for how best to address them.
I’m not sure if this qualifies as a gap, but I do think that Congress has created a significant obstacle to the use of military detention in the conflict with al Qaeda insofar by imposing such sweeping constraints on the ability of the president to transfer detainees away from GTMO when circumstances warrant. Combined with the lack of plausible long-term detention options, this discourages reliance on captures, and instead creates incentives to merely monitor as best as can be done, to plead for action by third countries, or to use lethal force where that is a lawful alternative.
Separately, Congress needs to anticipate the likely withdrawal of American forces from Afghanistan at some point in the next few years. Once U.S. forces are no longer engaged in sustained combat operations that at least somewhat relate to al Qaeda, some will argue that there is no longer any foundation for treating the law of armed conflict as applicable vis-a-vis al Qaeda, the Taliban, and associated forces—and hence that GTMO detention no longer has a legal basis. This argument may or may not prevail, but one can be certain that it will be raised through a new round of habeas petitions, and it has some chance of succeeding. If Congress actually wishes for the currently-existing scope of detention authority to continue to exist without respect to the status of our Afghanistan deployment, it should not simply wait for these arguments to develop and then hope that judges take one particular view on a sharply-contested question. Instead, it should directly and explicitly legislate the authority it wishes for the president to have—i.e., it should provide the requisite detention authority as a matter of domestic law, making clear the grant of this authority rather than hoping for it to be implied via contested claims regarding background principles of the law of armed conflict.
4. Please provide any additional thoughts or information that you were not able to share with the committee during the hearing, as well as any other points you would like to clarify.
I have no further thoughts to share at this time, except to reemphasize my bottom-line: the goal should be to maximize the array of lawful and legitimate options available to the president to employ in particular cases based on the advice of military, intelligence, and law-enforcement professionals.
* For a period in 2009 I served as an advisor to the Detention Policy Task Force, established under Executive Order 13493. I write solely in my personal capacity, of course, and nothing said here should be taken to reflect the views of that Task Force or any other person or department.
 Military Commissions Act of 2009 § 1802, 10 U.S.C. § 948c.