Kevin Heller objects to an argument that he incorrectly attributes to Ben and me in the wake of our recent dialogue with Steve Vladeck. Kevin writes:
Unfortunately, if all you read was Wittes and Chesney’s post, you would think it’s obvious that IHL permits the U.S. government to detain anyone who materially supports terrorism. After all, some unidentified federal judges agree with them that the [Graham bill’s] detention provisions are fine.
But we did not argue this (decide for yourself here). We did not claim that the laws of war are best read as affirmatively conferring detention authority in the material-support scenario, still less that they obviously do so (personally, I think the laws of war are agnostic on the question of the substantive grounds for detention in a non-international armed conflict ("NIAC"). What we did argue is that courts have disagreed as to whether the AUMF already contains this authority--an admittedly minor point about which we were debating with Steve.
We did also have something separate to say about the laws of war in that prior post, though again it wasn’t the view that Heller attributes to us. Specifically, we argued against the claim that the laws of war require the equivalent of the DPH standard (i.e., direct participation in hostilities) as a necessary condition for detention (in the NIAC setting or otherwise).
The DPH standard is of course the legal standard for targeting civilians with lethal force. But no treaty instrument makes it a detention standard in either the IAC or NIAC setting, nor am I aware of evidence that states have employed it in that manner out of a sense of legal obligation so as to generate a customary norm on this point. Nonetheless, Kevin suggests that something akin to the DPH standard in fact may be required. On this point, Kevin directs our attention to a report published in connection with “a 2008 ‘Expert Meeting on Procedural Safeguards for Security Detention in Non-International Armed Conflict,’ jointly sponsored by the ICRC and Chatham House.” The report endorses the view that the power to hold without criminal charge in NIAC
flows from the practice of armed conflict and the logic of IHL that parties to a conflict may capture persons deemed to pose a serious security threat and that such persons may be interned as long as they continue to pose a threat. Otherwise, the alternatives would be to either release or kill captured persons.
And as Kevin notes, the report also notes the importance—and difficulty—of defining the set of conduct or associations that would warrant resort to this power:
The majority of operational experts argued that whilst it is easy to provide examples that clearly pass or fail the “imperative reasons of security” test, the borderline cases pose significant challenges as there is neither a concrete definition nor practical guidelines on what the concept of “imperative reasons of security” exactly means. State practice is of limited help, as it is difficult to establish an exhaustive list of specific activities that would in all circumstances fall within or outside the legal standard.
Against the backdrop of such considerations, Kevin then argues that a
strong argument could be made that no one accused solely of “materially supporting” terrorism could be lawfully detained under these rules; Steve’s “active participation in hostilities” would seem to be the minimum required.
This is precisely the argument we meant to critique in our prior post. Active participation certainly might be a sufficient condition for viewing an individual as a security threat, but why also a necessary condition? Consider the situation in Iraq in, say, 2007. Let's say that there is an individual whom the U.S. and Iraqi governments believe is a key logistics figure in AQI or some other insurgent force, but who cannot be said to have personally participated, even at one step removed, in violent activity. And let's assume further that because of intimidation or otherwise, a prosecution in an Iraqi court just isn't likely. Either "active participation" will have to be defined broadly to encompass this scenario, or else the active participation standard would seem to preclude the U.S. or Iraqi governments from taking the person into custody.
In any event, the ICRC/Chatham House report does not endorse the use of active participation as a necessary condition, let alone suggest that this is a customary norm. And it’s also worth noting that this standard seems inconsistent with the ICRC commentary associated with Article 42 of the Fourth Convention, which addresses security internment in the IAC setting:
It did not seem possible to define the expression "security of the State" in a more concrete fashion. It is thus left very largely to Governments to decide the measure of activity prejudicial to the internal or external security of the State which justifies internment or assigned residence. [p.258] Subversive activity carried on inside the territory of a Party to the conflict or actions which are of direct assistance to an enemy Power both threaten the security of the country; a belligerent may intern people or place them in assigned residence if it has serious and legitimate reason to think that they are members of organizations whose object is to cause disturbances, or that they may seriously prejudice its security by other means, such as sabotage or espionage... On the other hand, the mere fact that a person is a subject of an enemy Power cannot be considered as threatening the security of the country where he is living; it is not therefore a valid reason for interning him or placing him in assigned residence. To justify recourse to such measures the State must have good reason to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security. [emphasis added]
Note, finally, that the active/direct participation standard does not merely limit the use of material support as a detention predicate. Depending on how one defines the standard, it appears to cut equally against reliance on a membership/part-of standard. That’s not to say that we don’t need to articulate a standard less sweeping than the general material support concept—as I’ve posted previously, I think it would be great to craft something more tailored, and certainly we should exclude such unrealistic scenarios as the brief-writing lawyer. The far more relevant and important question is whether weapons-trainers, fundraisers, and recruiters can be reached, either as supporters or as functional members. If the Graham bill does nothing else besides stirring genuine discussion about these boundaries, then it will have served a useful purpose.