Detention: Law of

Are There Detention Scenarios For Which We Need Some Form of AUMF Update?

By Robert Chesney
Friday, May 27, 2011, 10:32 AM

The debate regarding AUMF renewal via section 1034 of the NDAA FY12 is about much more than detention authority, but of course it does impact detention authority in various ways.  As to that issue, Deborah Pearlstein frames the issue nicely by asking whether there is likely to be a scenario in which (i) as a matter of policy we would want the US government to have military detention authority but (ii) the individual could not plausibly be detained pursuant to the existing AUMF.  It seems to me there are two such scenarios.

One involves existing detainees whom the US government might want to continue to hold regardless of whether we remain involved in relatively conventional combat operations on the ground in Afghanistan.  Let’s imagine that sometime in the next year or two, a combination of budgetary pressures, diplomatic progress, and domestic political pressure results in the withdrawal of US forces from Afghanistan (perhaps leaving behind an extremely light footprint of special forces operators and CIA personnel who will continue, from whatever location, to target al Qaeda figures).  Citing the same Hamdi language that Deborah quotes in her post, we very likely would see substantial arguments to the effect that detention no longer should be available under the original AUMF.  Indeed, that might be a very good argument as to Taliban detainees insofar as the facts on the ground involve resolution of the Taliban’s insurgency.  But would it be a good argument as to al Qaeda detainees, such as KSM?  Again, the O’Connor quote from Hamdi sounds a cautionary note.  So long as one thinks that detaining KSM or other al Qaeda figures is a good idea in general, and that the underlying rationale for their detention should not be tied directly to the existence of hostilities in Afghanistan in particular, this strikes me as a good reason to adopt clarifying AUMF language.

A second relevant scenario involves persons who have not yet been captured but who might be in the future.  Let’s use Ibrahim Hassan al-Asiri as our example.  Al-Asiri is, according to press reports, a bombmaking expert for AQAP.  Let’s imagine that the US gets lucky and somehow captures him and attempts to hold him in military detention.  Could it do so under the existing AUMF?  Certainly a fair case could be made, but that case would depend on showing either that (i) AQAP is part-and-parcel of al Qaeda itself (a point on which there is lots of disagreement, it seems) or (ii) the AUMF implicitly extends to “co-belligerent” groups and AQAP is within that category.  Ultimately, a judge in the habeas setting would decide whether this authority should exist or not (and that’s probably true even if the guy were taken to Afghanistan rather than GTMO, as a post-2008 out-of-theater detainee is precisely the scenario that the DC Circuit hints at in al-Maqaleh). I think it would be better if Congress simply addressed the issue directly, either foreclosing the detention option altogether or confirming that it exists.