Military Detention Through the Habeas Lens

Color profile: Disabled Composite Default screen VI Who May Be Held? Military Detention through the Habeas Lens Robert M. Chesney* ho lawfully may be held in military custody without criminal charge? It Wseems a simple question, and in some settings it is. 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 those contexts, with sharp disagreement regarding which bodies of law are relevant and what if anything each actually says about the detention-scope issue. This problem has been with us for some time. It has lurked in the background of US detention operations in Afghanistan since 20011 and in Iraq since 2003.2 It is central, of course, to the controversies surrounding the use of detention at Guan- tanamo and in the United States itself.3 More than one hundred thousand individ- uals have been detained without criminal charge across these settings,4 giving rise to an immense amount of scholarship, advocacy and litigation along the way. Re- markably, however, the question of who lawfully may be detained remains unsettled in important respects. * Charles I. Francis Professor in Law, University of Texas School of Law. I am grateful to the or- ganizers and participants at the Naval War College’s annual conference for their comments and criticisms, to the Office of the General Counsel of the Department of Defense for the opportunity to present this work in progress, and to Daniel Jackson for outstanding research assistance. A longer version of this article appears in the Boston College Law Review (forthcoming 2011). Vol 87.ps C:\_WIP\_Blue Book\_Vol 87\_Ventura\Vol 87.vp Friday, June 10, 2011 9:03:12 AM Color profile: Disabled Composite Default screen Who May Be Held? Military Detention through the Habeas Lens The problem exists along two distinct dimensions, only one of which do I address in this article. First, we have indeterminacy at the group level insofar as there is disagreement with respect to whether any authority to use military detention that the US government may currently possess extends to any entities other than al Qaeda and the Taliban, and also insofar as there is disagreement regarding which entities are sufficiently affiliated with al Qaeda or the Taliban so as to be indistin- guishable from them for purposes of this inquiry.5 Even if we had agreement regarding which groups are relevant for purposes of the detention issue, however, indeterminacy also manifests at the individual level insofar as we also lack agreement regarding the mix of conditions that are necessary or sufficient to justify the detention of a particular person. My aim in this article is to shed light solely on this individualized set of questions. That we lack consensus with respect to individualized detention criteria and constraints despite nearly a decade’s worth of litigation and debate to some extent reflects our preoccupation with other questions associated with military detention, above all the seven years’ war over the habeas jurisdiction of federal courts in relation to the Guantanamo detainees.6 Yet even prior to the resolution of that jurisdictional dispute in the Supreme Court’s 2008 decision in Boumediene v. Bush,7 courts did have several occasions to address the detention-scope issue; they just did not develop a consensus as a result. On the contrary, they splintered sharply in those cases, advancing an array of incompatible views regarding the ap- plicable law.8 Matters have improved to some extent in the aftermath of Boumediene.9 Many district and circuit court judges have had a chance to address who lawfully may be detained in the context of the Guantanamo habeas litigation. Their decisions re- flect a consensus that the government does have authority to detain without criminal charge in at least some circumstances, and that (at least for most of the judges) these circumstances at a minimum include at least some scenarios involving persons who are “part of” al Qaeda or the Taliban (whether the consensus extends to membership in other groups is much less clear). But beyond these points disagreement reigns. Whether a person is “part of” a group may be an administrable inquiry in the context of a regular armed force, but it does not map easily onto scenarios involving clandestine non-State actors with indistinct and unstable organizational struc- tures. As a result, judges who agree that members of such groups may be detained do not necessarily agree as to what conduct actually counts as membership in this context. And the judges most definitely have not reached consensus with respect to whether detention lawfully may be used in the distinct situation in which a non- member provides support to these groups. Indeed, the executive branch itself now 114 Vol 87.ps C:\_WIP\_Blue Book\_Vol 87\_Ventura\Vol 87.vp Friday, June 10, 2011 9:03:12 AM Color profile: Disabled Composite Default screen Robert M. Chesney appears divided on the propriety of using support as a stand-alone detention predi- cate. Perhaps most remarkably, an apparent consensus as to the relevance of the laws of war to these questions recently came unglued, with a divided panel of the D.C. Circuit Court of Appeals declaring that the matter should turn exclusively on domestic law considerations10 and a subsequent assertion by a majority of the ac- tive judges of that court in turn declaring that assertion to be dicta.11 All of which is interesting in the seminar setting, but does any of it actually matter in practice? That is not a frivolous question. By and large the merits determina- tions in the Guantanamo habeas cases have turned on the sufficiency of the government’s evidence (or lack thereof), and not on the legal boundaries of the government’s notional detention authority.12 Forbetterorworse,moreover,habeas jurisdiction has not (yet) been extended to overseas military detention operations involving non-citizens at locations other than Guantanamo,13 and thus one might be tempted to conclude that any problems resulting from the judiciary’s persistent inability to resolve the detention-scope question will be confined to a finite and shrinking set of cases. In fact, the question of who lawfully may be detained matters a great deal in ac- tual practice. As a threshold matter, the two premises mentioned above may prove to be incorrect. Much Guantanamo habeas litigation is yet to come, and it may well be that future cases will turn on this very issue. Similarly, the precise boundaries of habeas jurisdiction have not yet been fixed; though currently jurisdiction does not extend to Afghanistan, that question remains the subject of live litigation.14 Even if those premises remain valid, however, other considerations ensure the relevance of the detention-scope question. First, the answers judges give to this question have spillover effects beyond the immediate context of habeas.15 They overhang any other detention operations conducted under the rubric of the same underlying detention authority, regardless of whether those operations are subject to judicial review; government and military lawyers will not simply ignore judicial pronouncements regarding the scope of that authority, and may be expected to advise commanders and policymakers accord- ingly. By the same token, judicial decisions regarding the notional scope of detention authority may apply by extension to questions of targeting with lethal force in the field pursuant to that same authority, notwithstanding that targeting decisions ordinarily are not directly subject to judicial review.16 Future conflicts unrelated to 9/11 may also be impacted. The judges in the habeas litigation at times have in- cluded in their analyses interpretations of key terms and concepts from both inter- national and domestic law—such as “direct participation in hostilities” and “all necessary and appropriate force”—that will be relevant in most if not all future armed conflicts. 115 Vol 87.ps C:\_WIP\_Blue Book\_Vol 87\_Ventura\Vol 87.vp Friday, June 10, 2011 9:03:12 AM Color profile: Disabled Composite Default screen Who May Be Held? Military Detention through the Habeas Lens Taking all of this together, we can see that the judges in the habeas litigation are not merely deciding whether to grant the writ in particular cases. They have be- come,forbetterorworse,thecentralUSgovernment institution engaged in the critical—and ultimately unavoidable—task of tailoring the laws governing military activity to suit the increasingly important scenario in which States classify clandestine non-State actors as strategic threats requiring a military response. The paper proceeds in three parts. I begin at a high level of abstraction in Part I by drawing attention to two strands of debate that greatly complicate the task of de- termining whether particular detention criteria are forbidden, required or permit- ted by law: (i) disagreement regarding which bodies of law actually apply in a particular instance, and (ii) disagreement as to what a particular body of law has to say, if anything, when it comes to employing particular criteria in a detention standard. Against this backdrop, Part II provides a comprehensive descriptive account of how judges since 2002 have addressed the question of individual detention criteria, emphasizing that which has been settled and that which remains in dispute. In brief, judges largely (though not entirely) agree that detention authority lawfully extends to persons who are functional members of al Qaeda, the Taliban or associated forces, but they do not agree as to what membership means in this setting or whether detention authority also extends to non-members who provide support to such groups.

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