Guantanamo: Litigation

One More Thought on Charlie Savage's Story

By Benjamin Wittes
Saturday, September 17, 2011, 6:58 AM

I have little to add to Jack's excellent post yesterday about Charlie Savage's fascinating New York Times story on the latest dispute within the administration on the scope and reach of the AUMF. But I did want to draw readers' attention to one specific paragraph:

The fate of detainees at Guantánamo Bay, Cuba, hangs heavily over the targeting debate, officials said. In several habeas corpus lawsuits, judges have approved the detention of Qaeda suspects who were captured far from the Afghan battlefield, as well as detainees who were deemed members of a force that was merely “associated” with Al Qaeda. One part of the dispute is the extent to which rulings about detention are relevant to the targeting law.

Some time back, Bobby and I wrote a paper arguing--as we put it in the executive summary--that,

It is hard to overstate the resulting significance of these cases. They are more than a means to decide the fate of the individuals in question. . . . [T]o the extent that these cases establish substantive and procedural rules governing the application of law-of-war detention powers in general, they could end up impacting detentions far beyond those immediately supervised by the federal courts. They might, in fact, impact superficially-unrelated military activities, such as the planning of operations, the selection of interrogation methods, or even the decision to target individuals with lethal force.

We took a bit of heat for this claim. A lot of people found the posited relationship between targeting and detention attenuated or improbable. But it's very real. These cases are the only mechanism by which the country develops a body of judicial opinion concerning the meaning of the AUMF. While the context, of course, differs when the question turns to targeting, those cases remain a source of law--indeed, the only source of law other than executive branch interpretation--on the scope and meaning of the statute. It is, I think, inevitable that lawyers thinking about the application of the AUMF to targeting will consider carefully what the courts have said it means.