I was amused, in reading Judge Bates' Khan opinion just now, to run across the judge's account of the scope of the government's detention authority--amused because the New York Times this morning editorialized that holding people in prolonged military detention is "certainly illegal." The editorial writer didn't bother to cite any legal authority for this bald claim; that's not altogether surprising since none exists. Still, it's worth considering how an actual judge who has to follow actual law described the matter. Judge Bates' description would, I suspect, surprise the naive reader of the Times editorial:
The AUMF authorizes the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." AUMF, § 2(a). Such "necessary and appropriate force" includes the power to detain combatants subject to such force. See Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (plurality opinion); AI-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010) [hereinafter AI-Bihani II]. The scope ofthis power is broad: the government may detain any individual "engaged in hostilities ... against the United States," who "purposefully and materially supported hostilities against the United States or its coalition partners," or who "is part of the Taliban, al-Qaida, or associated forces." Al-Bihani II, 590 F.3d at 871-72; see also Hamlily v. Obama, 616 F. Supp. 2d 63,75 (D.D.C. 2009)."[T]here are no settled criteria," for determining who is "part of" the Taliban, al-Qaida, or an associated force. Hamlily, 616 F. Supp. 2d at 75; accord Bensayah v. Obama 610 F.3d 718, 725 (D.C. Cir. 2010). "That determination must be made on a case-by-case basis by using a functional rather than formal approach and by focusing on the actions of the individual in relation to the organization." Bensayah, 610 F.3d at 725; accord Hamlily, 616 F. Supp. 2d at 75. The Court must consider the totality of the evidence to assess the individual's relationship with the organization. See Naji al Warafi v. Obama, ---F. Supp. 2d ----, 2010 WL 1404001, at *4 (D.D.C.2010). But being "part of" the Taliban, al-Qaida, or an associated force requires "some level of knowledge or intent." Hamlily, 616 F. Supp. 2d at 75; see also Bensayah, 610 F.3d at 725 ("purely independent conduct of a freelancer is not enough" to demonstrate an individual was "part of" an organization.).