Has the U.S. government’s authority to use military detention under the 2001 authorization for the use of military force (AUMF) quietly expired? So argue a group of eleven Guantanamo detainees in a habeas corpus petition filed last week.
The petition raises significant questions, but I find it unpersuasive. Here’s why:
1. A threshold issue: Haven’t these detainees already pursued habeas relief?
Yes, all of them already have pursued habeas relief (see here, for example). The petition is captioned with reference to the detainees’ various preexisting case numbers, in fact, and appears to have been docketed in connection with one filed originally in 2009.
This is not, however, an obstacle in this particular setting. True, Congress has passed a statute limiting repeat petitions challenging a criminal conviction (see 28 USC 2255(h)). Here, however, we are dealing with persons held in military detention for the duration of hostilities. There is no comparable statute in this context.
2. Three due process clause arguments: What are they, and why aren’t they persuasive?
The petitioners argue that their continuing detention violates the Fifth Amendment’s due process clause both in its procedural and substantive aspects.
As an initial matter, this requires them to show that they are protected by the due process clause in the first place, despite being noncitizens held outside formal U.S. territory. Citing Justice Anthony Kennedy’s Boumediene v. Bush holding, they argue that there is no practical barrier to application of due process protections at GTMO just as there were no such barriers to extension of the suspension clause in that case. As a general proposition, this seems right to me. Of course, it does not follow that the due process clause therefore has been violated; let’s turn now to the particulars of that argument (or, rather, those arguments, for there are several lines of attack under this heading).
a. Has GTMO shifted from law-of-war detention to permanent detention?
First, the detainees argue that due process substantively forbids noncriminal detention that has no time boundary and that this is what GTMO detention has become under the Trump administration.
This argument appears to depend on the petitioners’ factual claim (highlighted in their statement of facts) that the Trump administration has abandoned the Bush and Obama administration policy pursuant to which detainees may be held for the duration of hostilities only, and instead that the Trump administration now asserts authority to hold detainees forever whether there are ongoing hostilities or not.
If the government’s policy indeed is to hold detainees forever without respect to the continuing existence of relevant hostilities, then this argument at some point would have to work (though it would not necessarily work right now, insofar as there continued to be a relevant armed conflict that otherwise would justify the continuing detention; in other words, the argument might be premature). I’m doubtful that this is the government’s actual policy, however. The Justice Department certainly will deny it in their response. That is, they’ll insist that GTMO detention policy remains as before: contingent on the existence of an underlying armed conflict.
At that point, things will get interesting. In any past administration, one would have a very hard time relying on campaign statements and the like to persuade a judge that the government’s policy is X when the government formally declares it to be Y instead. But the travel ban cases remind us that this can occur, that there can be something of a “Trump effect” weakening usual notions of judicial deference. Will that happen in this setting too, with Judge Richard Leon (and then with the D.C. Circuit, and then perhaps the Supreme Court)? I’m doubtful. The grounds for inferring a “real” policy contravening the formally-stated policy are weaker here, it seems to me, and I think it also matters that here we are likely to have a formally stated policy that is unchanged from the policies of the past two presidents, in contrast to the novelties of the Travel Ban.
b. Does the government’s burden of proof increase over time?
Next, the detainees make a related argument to the effect that the procedural safeguards associated with the initial wave of habeas litigation—particularly the use of the preponderance standard as the government’s burden of proof—are inadequate to satisfy the due process clause.
On its face, this certainly looks like an uphill battle. The burden-of-proof question was litigated during the first wave of GTMO habeas litigation, after all. The detainees seek to get around this problem by arguing that either the sheer passage of time or the prospect that Trump intends for their detention to be permanent requires reconsideration of the matter. The former argument (about lengthening time) will be a hard sell. For one reason, it would be hard to say just when the higher standard took hold. But also, many years already had passed by the time the burden question was litigated in the first round of GTMO habeas cases, and the judges in those cases no doubt were mindful of this concern already. The latter argument would be stronger in this respect, but as noted above I am skeptical that this is in fact now U.S. government policy.
Notably, the detainees add in a semi-separate argument at this point, to the effect that long-term noncriminal detention should not be based on conduct that occurred some fifteen years in the past, but instead should have to be “grounded in present conditions.” The petition does not specify what those present conditions would have to be, however, and in any event the government most likely would say—correctly—that the relevant present condition is the ongoing existence of hostilities.
c. If a PRB approves transfer, is that binding even if the Defense Secretary has not approved?
Two of the eleven petitioners were approved for transfer by a Periodic Review Board (PRB) during the Obama administration, but for various reasons were not actually transferred before the Trump administration began—and the Trump administration appears to intend to keep custody of them after all. The petition asserts that this violates the due process clause because the board’s decision amounts to a determination that “there is no reason to continue to hold these petitioners.” Put simply: Even if there continues to be authority to hold other detainees, the government itself has concluded that this authority no longer applies to those two individuals in light of the PRB’s determination.
A version of this claim arose last year in litigation filed at the tail-end of the Obama administration, as it became clear to these detainees that they would not be transferred before the presidential transition, and they sought emergency relief. As Judge Colleen Kollar-Kotelly explained in this order, denying such relief:
Petitioner’s status is unaffected by the PRB’s recommendation that he be transferred to Morocco. The Executive authority enacting the PRB review process unequivocally states that the PRB’s findings “[do] not address the legality of any detainee’s law of war detention.” Exec. Order No. 13,567 § 8 (2011). …
[T]here has been no “invasion of a legally protected interest.” Under settled Supreme Court and D.C. Circuit precedent, Petitioner does not have a right to be released or transferred from his detainment, and no additional right has been conferred by either the PRB determination or by § 1034 of the 2016 NDAA. The decision to transfer Petitioner pursuant to a recommendation of the PRB rests exclusively within the discretion of the Secretary of Defense. Petitioner has no “right” to such a transfer. See Exec. Order No. 13,567 § 10(c) (2011) (Executive Order establishing the PRB “does not create any right or benefit"); 2012 NDAA § 1023(b)(2) (Secretary of Defense is “not … bound by any such [PRB] recommendation"). The Secretary of Defense has exercised that discretion and “elected to leave [the decision on Petitioner’s transfer] to his successor.” Resp'ts' Resp. at 6-7.
In this regard, the Court observes that even were it to grant the relief that Petitioner seeks under § 1034(a)(2)—an order “declaring that the certification and 30-day notice requirements not apply”—Petitioner would fare no better given that the Secretary of Defense has determined to not pursue Petitioner’s transfer irrespective of those notice and certification requirements. Resp'ts' Resp. at 6-7 ("the Secretary of Defense did not make a final decision regarding the transfer … as he elected to leave that decision to his successor"). Although §1034 imposes certain notice and certification restrictions on the Secretary’s ability to effect a transfer, the removal of those restrictions would not mandate that the Secretary of Defense effect Petitioner’s transfer. That decision ultimately rests with the Secretary of Defense, and in Petitioner’s case, “the Secretary of Defense did not make a final decision regarding the transfer."
Can this same outcome be avoided by reframing the situation in terms of the due process clause? Probably not. The PRB’s recommendation just isn’t the last word for the executive branch. This is stated clearly in the relevant statute: Section 1023(b)(2) of the National Defense Authorization Act for Fiscal Year 2012 (“NDAA FY’12”). It states that, notwithstanding the PRB’s determination, “the Secretary of Defense is responsible for any final decision to release or transfer … [and] shall not be bound by any such recommendation.” This seems dispositive.
3. Has statutory authority to detain expired?
Apart from due process arguments, the petitioners claim that the 2001 AUMF no longer justifies their detention for several reasons.
As an initial matter, it is worth noting that the petition opens this section of argument by stating that the AUMF is the only relevant statutory authority for detention purposes. This is jaw-dropping. Section 1021 of the NDAA FY’12 was enacted in late 2011 precisely in order to shift detention authority onto firmer statutory ground. It expressly recognizes authority to detain members of al-Qaeda, the Taliban, and their associated forces, so long as the hostilities originally recognized in the 2001 AUMF continue. Remarkably, the petition never mentions the NDAA for FY12, for Section 1021 or otherwise. What follows below assumes for the sake of argument that this omission is harmless, however, on the theory that the ultimate question under either statute is whether there continues to be a relevant armed conflict.
a. The permanent detention argument (Restated for the AUMF)
First, the detainees argue that the AUMF cannot be read to justify permanent detention delinked from underlying hostilities. Fair enough. But that’s only relevant if one accepts the detainees’ claim that President Trump has abandoned the duration-of-hostilities model in favor of permanent detention. He may well be abandoning the idea of discretionary transfers and releases of those who could otherwise lawfully be held, but I don’t think there is sufficient basis to conclude that the Trump administration has abandoned the requirement that there be an underlying armed conflict (and as noted above, I’m doubtful courts will have a different view notwithstanding the non-deferential approach seen in Travel Ban cases).
b. Did the war with al-Qaeda end?
Second, the detainees argue that “[t]he conflict against the core Al Qaeda organization in connection with which they were captured has ended and been taken over by disparate battles involving new groups.” (p.32)
This is an important argument, and one day (we must all hope) it will be ripe. But has that moment arrived?
The petition does little to make that case. It does not attempt to support its position with a description of the current status of the core al-Qaeda organization. It doesn’t discuss the relationship of the core to its close affiliates. It does not comment on the nature and scale of U.S. military engagement against any of them over any particular period of time. There is much that could be said on those subjects (see here for an example focused just on the status of al-Qaeda), but here we simply get an assertion that the war with al-Qaeda at some point ended already. Later in the brief, to be sure, there is a discussion of how President Obama at one point declared combat operations in Afghanistan to be over, transitioning to a training/advising/assisting mission. But combat operations did not actually end at that time, and they have ramped back up since. Consider this account from December 2017, describing U.S.-Afghan operations against a key al-Qaeda leader in which that leader and “scores of other al-Qaeda members were killed.” Even if the only relevant theater for purposes of this question is Afghanistan—and it is not obvious that it should be—the claim that the conflict is over seems premature.
c. Is membership alone grounds for detention?
The same section of the brief that denies there is an ongoing conflict with al-Qaeda also presents an alternative argument ostensibly based on the laws of war (IHL or LOAC, as you prefer). The argument is that membership in an armed group is an insufficient basis for detention in a noninternational armed conflict, and that there must instead be a showing on grounds beyond membership to the effect that detention is still needed to prevent someone from returning to hostilities.
The petition says little to flesh out its claim that membership cannot be the basis for continued detention in a NIAC, aside from citing the proposition that continued detention must be justified by the need to ensure the person does not return to the battlefield. More to the point, the petition does not explain why proof of membership in an organized armed group would be an acceptable ground for the initial detention decision but not also a ground for concluding later that the person poses a risk of returning to the battlefield.
At any rate, the proposition seems foreclosed, for purposes of this litigation, by the extensive body of D.C. Circuit precedent accepting membership as a ground for ongoing detention in GTMO cases.
d. Does the Hamdi precedent no longer apply?
The petition makes much of the proposition that the AUMF says nothing expressly about detention, that the Supreme Court in 2004’s Hamdi nonetheless inferred detention authority under that statute because it felt that there was a genuine armed conflict underway in Afghanistan at that time, and that Hamdi went out of its way to warn that this understanding could “unravel” in other/future circumstances that no longer fit the description of armed conflict so clearly. Current circumstances have indeed unraveled, the detainees say, and so the AUMF cannot be read to provide detention authority any longer.
The problem with this argument is that, as noted above, today’s circumstances are not so obviously different from how things stood several years ago when the first GTMO habeas litigation wave—including unsuccessful petitions by most of these same petitioners—originally unfolded. They may yet make the case that things have indeed unraveled too far in the interim, but it is far from clear that they can do so.
The petition concludes with a general appeal to the court’s common law habeas powers, but it seems to me there is nothing in that section that is not already covered in the prior sections.
What, then, is the bottom line?
The significance of al Bihani et al. v. Trump is that it is a real effort to call the question of whether the underlying armed conflict with al Qaeda has ended. In my view that conflict continues, and so I expect this petition to fail. But the theory behind the effort—that GTMO detention cannot extend beyond a plausible claim that the conflict continues—is correct. One day, I hope, the right answer will indeed be that the conflict has ended. At that point, the U.S. government had best be prepared with a disposition plan for those detainees who then remain.