Detention: Law of

A Question for Deborah Pearlstein

By Benjamin Wittes
Sunday, July 3, 2011, 7:55 AM

I was intrigued by this post from a few days ago by Deborah Pearlstein over at Opinio Juris. Entitled "Catching Up with the Senate on Detainee Matters," it concludes as follows:

the Senate bill is a substantial improvement over the House version in its attempt to clarify the scope of the 2001 Authorization for Use of Military Force (AUMF). Again, this is the domestic statute that has come to serve as the key legal authorization for ongoing detentions in Afghanistan and Guantanamo, as well as (at least in part) for U.S. targeting operations overseas. Where the House bill seemed intent on expanding the scope of that authorization (indeed, on expanding our understanding of the nature of the armed conflict in which the United States is engaged), the Senate bill appears to contain no such language. On the contrary, it ties detention authority squarely to the 2001 AUMF, and describes the scope of that detention authority precisely as the courts (and Obama Administration) have done in the Guantanamo habeas cases in the federal courts. It also, for the first time, makes express Congress’ intention that detention under this authority be carried out pursuant to the law of war. I’ll be interested to hear others’ reactions, but I read this as codification of the status quo (with a slap to the D.C. Circuit to emphasize that international law is relevant), not an expansion of authority that exists.

I say "intrigued" because I had understood Deborah's position over many years as one of opposition to legislative codification of detention authority--even mere codification of the status quo detention power the administration claims under the laws of war. Yet the tone of this post suggests relief at this moderate Senate posture; it almost sounds as though Deborah could live with such language--as long as the detention power doesn't go beyond the laws of war and the legislation doesn't go beyond detention power to expanding the scope of the conflict. This raises the following the question: Is there a softening here of opposition to detention legislation? Or is the apparent complacency about the Senate language merely complacency relative to the House language?