Detention: Law of: D.C. Circuit Development

A Thought on Al Madhwani

By Benjamin Wittes
Sunday, May 29, 2011, 8:59 AM

I said on Friday that I would post some thoughts on the D.C. Circuit's decision in Al Madhwani. Here is my first.

This is the second recent decision in which the D.C. Circuit has casually reiterated that is has "held" that someone may be detained based on "support" for an enemy group that is less than substantial. The opinion has the following language:

We have held that the authority conferred by the AUMF covers at least “those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.” Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010), cert. denied, 79 U.S.L.W. 3568 (U.S. Apr. 4, 2011) (No. 10-7814).

The distinction between "substantial support"--the standard the administration uses--and this D.C. Circuit standard may or may not have practical implications. (I have my doubts.) But elements within the administration, and outside commentators like Steve Vladeck, are very concerned about it--on grounds that the D.C. Circuit standard potentially allows more detention than do the laws of war. When the Circuit did this once before, Vladeck wrote that:

Just to be clear, the key here is the notion that anyone who "purposefully and materially support[s]" al Qaeda or the Taliban can be detained indefinitely, whether or not they're in any way affiliated with either group, and whether or not they come anywhere near the definition of a "belligerent" under international humanitarian law. (After all, the famous "little old lady in Switzerland" who gives money to certain Islamic charities may be materially supporting al Qaeda...)

Suffice it to say, it's an amazingly broad--and momentous--holding. So what? Well, (1) the Obama Administration has never affirmatively argued in a habeas case that the scope of the AUMF should be understood by reference to the MCA; (2) such a conclusion was, at best, dicta in Al-Bihani (which is why the district court in Hatim said Al-Bihani only "call[ed] into question" Hatim's argument, rather than foreclosed it); and (3) there is clear and compelling evidence that, dicta or not, Al-Bihani's analysis on this issue was just plain wrong.

Now, an ideologically diverse panel of the Circuit has done it again. Ironically, of course, the much-derided McKeon legislation would codify the narrower standard ("substantial support") and thus might turn out to be a narrower detention authority than is emerging from the D.C. Circuit.