In a post on the American Constitution Society's blog, Steve Vladeck takes aim at section 1031 of the Senate version of the NDAA FY '12, which concerns detention authority under the 9/18/01 AUMF. If you've not yet done so, I suggest you click through to read Steve's full account, and then come back here for my responsive thoughts. Don't worry, I don't mind waiting while you click over....
...and welcome back. As you just saw, Steve criticizes 1031 on two main grounds, one having to do with whether 1031 would expand the range of groups and individuals around the world to whom detention authority would extend and the other having to do with the existence of detention authority as to captures in the United States itself.
1. Detention Authority in General
Steve argues that 1031 expands beyond the scope of the 9/18/01 AUMF's detention grant at both the group and individual levels. It does so at the group level, he says, by breaking with the 9/18/01 AUMF's requirement of a nexus with al Qaeda (the group responsible for the 9/11 attacks), and it does so at the individual level by specifying that individuals may be detained based on providing support to hostilites even if they have not engaged in hostilities themselves (whereas the caselaw from the GTMO habeas proceedings, he says, requires proof that one is "part of" an AUMF covered group, not just an independent supporter).
Regarding the group-level concern:
I take Steve's point to be that 1031 opens to door to detention of persons fighting against our allies (whoever they might be) but not against us in any relevant sense. That's certainly a legitimate concern, but I don't think 1031 actually presents it. The language that strikes Steve as problematic is found in 1031(b), which defines the phrase "covered persons." Steve is right in pointing out that 1031(b)'s definition, if examined in isolation, could be construed to be far broader than he or I would think appropriate. But I think there is a separate section of 1031 that imposes an additional constraint, one that should suffice to address this particular objection. Section 1031(a) states that "The Armed Forces of the United States are authorized to detain covered persons captured in the course of hostilities authorized by the [9/18/01 AUMF]..." So let's say there is some Hezbollah fighter linked in some plausible way to hostilities against, say, Isreal. Section1031(b) in isolation might, at least in theory, be read to categorize him as a "covered person." But in light of 1031(a), I see no way to assert detention authority over the individual despite this. Bottom line: I'd be happy to see the language rewritten to avoid these concerns more clearly, but in the end I think the concern is not warranted even if the language were left untouched.
Regarding the individual-level concern:
Steve argues that 1031(b)(2) "overrides international law by authorizing detention of individuals who may have never committed a belligerent act," in that the section refers explicitly both to a person who has "committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." Two questions, then: is this definition really contrary to international law, and is it different from the status quo under the AUMF? I'm skeptical on both counts, though the matter is murky.
As to international law: I assume Steve is speaking of IHL, and is essentially arguing that that the rule relating to detention for the duration of hostilities does not extend to persons who have not engaged in a belligerent act themselves. I have trouble accepting that for a couple of reasons, though I would agree that it is hardly crystal clear that the opposite position is the correct one. First, even if the detention-during-hostilities concept has no application, this does not mean IHL forbids the detention. In the most restrictive IHL setting--international armed conflict--IHL explicitly contemplates the detention of even outright civilians in some settings; the paradigm is a distinct one, and requires periodic reconsideration whether the person continues to pose a sufficient security threat, but there is little doubt that someone who is aiding the enemy could be held on that non-criminal basis consistent with IHL. Second, assuming we are only speaking of the detention-during-hostilities concept, I think that IHL is highly unsettled when it comes to who in the NIAC setting can be held in that way. Some say no one. Others say that a narrowly defined set of persons who are members of organized armed groups party to the fact can be so held. Others take that view but define it more broadly. It is tricky to see how all of it best maps on to 1031(b)(2), particularly if we assume a case in which a person has only supported hostilities rather than directly engaged in hostilities, but is nonetheless a member of the armed group in question.
As to how 1031(b)(2) compares to the status quo: I'm not sure if Steve is arguing that the "direct support" concept breaks with the status quo under the current AUMF, but if he is then I'd have to disagree. To be sure, the vast majority of GMTO habeas cases turn on membership, not non-member support. But the fact remains that a mix of DC Circuit panels have repeatedly--and advisedly--referred to both membership and non-member support as providing an adequate detention predicate under the current statute. At most, I think it would be fair to say that this remains contentious and that the new statute if adopted would resolve the issue legislatively rather than judicially. That could be a feature rather than a bug of 1031(b)(2), however, in terms of which bodies ideally should be responsible for deciding whom the US should categorize as detainable.
2. Detention in the US
Steve's separate line of criticism concerns 1031's application to captures within the US. Section 1031(d) is framed a bit awkwardly. It forbids use of detention authority on citizens or lawful permanent residents (LPRs) if detention would be based on conduct occurring in the United States (thus excluding the Hamdi scenario), "except to the extent permitted by the Constitution of the United States." Put more directly, as Steve notes, this amounts to a statement that detention authority extends to citizens and LPRs to the extent permitted by the Constitution.
Steve argues that this breaks with the status quo by trumping the Non-Detention Act of 1971, which forbids non-criminal detention of citizens absent some applicable statutory foundation for the detention. More specifically, it resolves the still-disputed question of whether the existing AUMF already does just that when it comes to domestic captures (a position many observers think the Supreme Court would have rejected had it had the chance in the Padilla or al-Marri cases, both of which diverted into criminal prosecutions before SCOTUS review). All that said, I don't think we should focus too much on whether this is a matter of clarification, restatement, or expansion compared to the status quo. We should focus, instead, on the merits of the arguments for and against allowing any military detention for citizens and LPRs based on domestic conduct, regardless of whether that authority already lies with the existing AUMF. Steve is definitely against it, and I'm sympathetic to his view but need to think it through further....
[Update: Steve has posted a thoughtful reply to my post here.]