The district court held that the AUMF and the law of war authorize the U.S. government to detain those persons who are “part of” the forces of organizations targeted by the AUMF. The court also held that the government’s detention authority under the AUMF reaches those who are members of the “associated forces” of those organizations, so long as those forces would be considered co-belligerents under the law of war. In contrast, the court found that neither the AUMF nor the law of war authorizes the government to detain an individual who “substantially supports” but is not “part of” a targeted organization. Likewise, the court held that the U.S. government’s detention authority did not extend to those persons who have only “directly supported” hostilities.
Adel Hamlily, along with other detainees, filed habeas corpus petitions challenging their detention at Guantanamo. The U.S. government argued that the President has the authority to detain, among others, persons that the President determines “were part of, or substantially supported, Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.” Hamlily rejected this claim, asserting that it was impermissible under the AUMF, the U.S. constitution, and international law. In particular, Hamlily argued that, as implied by the Supreme Court in Hamdi, “the scope of the executive’s detention power in [cases such as this] is that authorized by the traditional law of war,” such that the President could detain only lawful combatants and those civilians who had become unlawful combatants by directly participating in hostilities.
The District Court for the District of Columbia, in an opinion by Judge Bates, rejected the use of “substantial support” and “directly supporting hostilities” as “independent bas[e]s for detention.” In effect, the court “c[ould] find no authority in domestic law or the law of war … to justify the concept of ‘support’ as a valid ground for detention.” The court, however, found that “[t]he AUMF and the law of war do authorize the government to detain those who are ‘part of’ the ‘Taliban or al Qaida forces.’”
The AUMF authorizes the President “to use all necessary and appropriate force against those … organizations … he determines planned, authorized, committed, or aided” the September 11 attacks “to prevent any future acts of international terrorism against the United States by such … organizations….” The court found that, “[b]y authorizing the use of force against the ‘organizations’ responsible for the September 11 attacks, [the AUMF] also, necessarily, authorized the use of force (including detention) against their members.” However, the question remained “whether this authority is consistent with the law of war.”
The court first determined that the “U.S. conflict with al Qaeda is a non-international armed conflict.” Then, the court analyzed the law of war consequences arising from that determination.
The court noted that the “lack of combatant status in non-international armed conflicts does not, by default, result in civilian status for all, even those who are members of enemy ‘organizations’ like al Qaeda.” Next, the court found that the “government’s claimed authority to detain those who were ‘part of’ those organizations is entirely consistent with the law of war principles that govern non-international armed conflicts.” In particular, the court noted, “Common Article 3, by its very terms, contemplates the ‘detention’ of ‘[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their weapons and those placed hors de combat.’” The court held that, “[a]t a minimum, this restriction establishes that States engaged in non-international armed conflict can detain those who are ‘part of’ enemy armed groups.” Consequently, the court rejected Hamlily’s claim “that the laws of war permit a state to detain only individuals who ‘directly participate’ in hostilities in non-international armed conflicts.”
The court then held that, “[i]n addition to members of al Qaeda and the Taliban, the government’s detention authority also reaches those who were members of ‘associated forces,’” which, “[f]or purposes of these habeas proceedings,” the court read to mean “‘co-belligerents’ as that term is understood under the law of war.” The court refused to “set forth an exhaustive list” of the “criteria to be used in determining whether someone was ‘part of’ the ‘Taliban or al Qaida or associated forces.’” Instead, the court adopted a functional approach.
Despite accepting some of the government’s claimed authority, the court then rejected the President’s assertion that he had the power to detain those who substantially support the Taliban, al Qaeda, or associated forces or who directly supported the hostilities. “Detaining an individual who “substantially supports” such an organization, but is not part of it,” or who “directly supported the hostilities,” the court said, “is simply not authorized by the AUMF itself or by the law of war.” The court noted, however, that, “[d]espite [its] rejection of [these support based principles] as … independent bas[e]s for detention, the concept[s] may play a role under the functional test used to determine who is a ‘part of’ a covered organization.”
Gherebi v. Obama, 609 F.Supp.2d 43 (D.D.C.2009).
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