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Military Detention Through the Habeas Lens Robert M Boston College Law Review Volume 52 | Issue 3 Article 2 5-1-2011 Who May Be Held? Military Detention Through the Habeas Lens Robert M. Chesney University of Texas School of Law, [email protected] Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Military, War, and Peace Commons, and the National Security Law Commons Recommended Citation Robert M. Chesney, Who May Be Held? Military Detention Through the Habeas Lens, 52 B.C.L. Rev. 769 (2011), http://lawdigitalcommons.bc.edu/bclr/vol52/iss3/2 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. WHO MAY BE HELD? MILITARY DETENTION THROUGH THE HABEAS LENS Robert M. Chesney* Abstract: We lack consensus regarding who lawfully may be held in mili- tary custody in the contexts that matter most to U.S. national security to- day—i.e., counterterrorism and counterinsurgency. More to the point, federal judges lack consensus on this question. They have grappled with it periodically since 2002, and for the past three years have dealt with it con- tinually in connection with the flood of habeas corpus litigation arising out of Guantanamo in the aftermath of the Supreme Court’s 2008 deci- sion in Boumediene v. Bush. Unfortunately, the resulting detention juris- prudence is shot through with disagreement on points large and small, leaving the precise boundaries of the government’s detention authority unclear. The aim of this Article is to flesh out and contextualize these dis- agreements, and to locate them in relation to larger trends and debates. Introduction Who lawfully may be held in military custody without criminal charge? It seems a simple question, and in some settings it is.1 But in the settings that matter most at the moment—counterterrorism and counterinsurgency—it is not simple at all. The very metrics of legality are disputed in these contexts, with sharp disagreement regarding which bodies of law are relevant and what, if anything, each actually says about the scope of the government’s authority to detain (the “de- tention-scope issue”).2 This problem has been with us for some time. It has lurked in the background of U.S. detention operations in Afghanistan since 20013 * © 2011, Robert M. Chesney, Charles I. Francis Professor in Law, University of Texas School of Law. I am grateful to the organizers and participants at the Naval War College’s annual law of war conference for their comments and criticisms, to the Office of the Gen- eral Counsel of the Department of Defense for the opportunity to present this work in progress, and to Daniel Jackson for outstanding research assistance. 1 See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War art. 4(A), Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GPW]. 2 See infra notes 350–586 and accompanying text. 3 See, e.g., 1 Ctr. for Law & Military Operations, U.S. Army, Legal Lessons Learned from Afghanistan and Iraq 53 (2004) (describing uncertainty regarding the status of the initial detainees in Afghanistan in late 2001). 769 770 Boston College Law Review [Vol. 52:769 and in Iraq since 2003.4 And it is central, of course, to the controversies surrounding the use of detention at Guantanamo and within the Unit- ed States itself.5 More than one hundred thousand individuals have been detained without criminal charge across these settings,6 giving rise to an immense amount of scholarship, advocacy, and litigation along the way.7 Remarkably, however, the question of who lawfully may be detained remains unsettled in important respects. This problem exists along two distinct dimensions, only one of which is addressed in this Article. First, we have indeterminacy at the group level: there is disagreement as to whether any military detention authority currently possessed by the U.S. government extends to enti- ties other than al Qaeda and the Taliban, and there is disagreement regarding which entities are sufficiently affiliated with al Qaeda or the Taliban so as to be indistinguishable from them for purposes of this inquiry.8 Second, even if we had agreement regarding which groups 4 See Robert Chesney, Iraq and the Military Detention Debate: Firsthand Perspectives from the Other War, 2003–2010, 51 Va. J. Int’l L. 549, 557–58 (2011). 5 See infra notes 64–212 and accompanying text. 6 More than one hundred thousand persons have been detained without charge in Iraq alone since 2003. See Chesney, supra note 4, at 553. The U.S. detention facility in Parwan, Afghanistan holds approximately one thousand individuals at a time, and the prior primary detention facility in Afghanistan—the Bagram Theater Internment Facility—held approxi- mately six hundred to eight hundred at a time. See Editorial, Backward at Bagram, N.Y. Times, May 31, 2010, at A26 (giving the figure for Bagram); Spencer Ackerman, U.S. Scans Afghan Inmates for Biometric Database, Wired: Danger Room (Aug. 25, 2010, 12:37 PM), http://www. wired.com/dangerroom/2010/08/military-prison-builds-big-afghan-biometric-database/ (giv- ing the figure for Parwan). Between 2002 and 2008, approximately 779 individuals were held at Guantanamo. See Benjamin Wittes & Zaahira Wyne, Brookings, The Current De- tainee Population of Guantánamo: An Empirical Study 1 (2008). Three more individu- als—including one who was held at Guantanamo for a time—also were held in military cus- tody inside the United States. See infra notes 215–349 (discussing these cases). 7 See, e.g., Boumediene v. Bush, 553 U.S. 723, 732–33 (2008); Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004); Rasul v. Bush, 542 U.S. 466, 484 (2004), superseded by statute, Detainee Treatment Act of 2005 §§ 1001, 1003–1004, Pub. L. No. 109-148, 119 Stat. 2680, 2739 (cod- ified at 42 U.S.C. § 2000dd (2006)), as recognized in Boumediene, 553 U.S. 723; Benjamin Wittes, Detention and Denial: The Case for Candor After Guantánamo 5–7 (2010). 8 Compare Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Ter rorism, 118 Harv. L. Rev. 2047, 2113 (2005) (“Terrorist organizations that act as agents of al Qaeda, participate with al Qaeda in acts of war against the United States, systematically provide military resources to al Qaeda, or serve as fundamental communication links in the war against the United States, and perhaps those that systematically permit their buildings and safehouses to be used by al Qaeda in the war against the United States, are analogous to co-belligerents in a traditional war.”), and Robert Chesney, More on the AQ/AQAP Issue, Includ- ing Thoughts on How the Co-Belligerent Concept Fits In, Lawfare (Nov. 4, 2010, 12:23 AM), http:// www.lawfareblog.com/2010/11/more-on-the-aqaqap-issue-including-thoughts-on-how-the-co- belligerent-concept-fits-in/ (exploring the co-belligerent issue), with Kevin Jon Heller, The ACLU/CCR Reply Brief in Al-Aulaqi (and My Reply to Wittes), Opinio Juris (Oct. 9, 2010, 9:10 2011] Military Detention Through the Habeas Lens 771 are relevant for purposes of the detention issue, however, indetermi- nacy also manifests at the individual level: we lack agreement as to the mix of conditions that are necessary or sufficient to justify the deten- tion of a particular person.9 This Article aims to shed light on the set of questions that arises at this second, individual level. That we lack consensus with respect to individualized detention criteria and constraints, despite nearly a decade’s worth of litigation and debate,10 reflects our preoccupation with other questions associ- ated with military detention—above all the seven years’ war regarding federal courts’ habeas jurisdiction over the Guantanamo detainees.11 Yet even prior to the resolution of that jurisdictional dispute in the U.S. Supreme Court’s 2008 decision in Boumediene v. Bush,12 courts had sev- eral occasions to address the detention-scope issue; they just did not develop a consensus as a result.13 On the contrary, the courts splintered sharply in those cases, advancing an array of incompatible views regard- ing the applicable law.14 Matters have improved somewhat in the aftermath of Boumediene.15 Many district and circuit court judges, in the context of the Guan- PM), http://opiniojuris.org/2010/10/09/the-acluccr-reply-brief-in-al-aulaqi-and-my-reply-to- wittes/ (denying that the co-belligerent concept applies, as a matter of international law, in the context of non-international armed conflict). 9 See infra notes 213–586 and accompanying text. 10 For particularly useful treatments of the issue, see Baher Azmy, Executive Detention, Boumediene, and the New Common Law of Habeas, 95 Iowa L. Rev. 445, 504–14 (2010); Bradley & Goldsmith, supra note 8, at 2107–33; Ryan Goodman, The Detention of Civilians in Armed Conflict, 103 Am. J. Int’l L. 48, 51–60 (2009); Ryan Goodman & Derek Jinks, Interna- tional Law, U.S. War Powers, and the Global War on Terrorism, 118 Harv. L. Rev. 2653, 2654–58 (2005); Monica Hakimi, International Standards for Detaining Terrorism Suspects: Moving Be- yond the Armed Conflict-Criminal Divide, 33 Yale J. Int’l L. 369, 370–75 (2008); Ganesh Sita- raman, Counterinsurgency, the War on Terror, and the Laws of War, 95 Va. L. Rev. 1745, 1821 (2009); Matthew C. Waxman, Administrative Detention of Terrorists: Why Detain, and Detain Whom?, 3 J.
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