Monday, April 27, 2009

Gherebi v. Obama: D.C. District Shows "Substantial Support" for Obama's New Detention Standard

It's law school exam time so I've been a little bit slow in posting this, but this is an important decision because it begins to flesh out Obama's new detention standard. In short the decision by Judge Walton adopts Obama's new "substantial support" standard, defines what constitutes membership in al Qaeda or the Taliban is, and finds that the Authorization for Use of Military Force ("AUMF") does not derive from domestic criminal law.

The court's initial analysis focused on the independence of the AUMF. A couple of the petitioners in this case argued that the AUMF had to derive from domestic law since the war on terror (al Qaeda and the Taliban specifically) was not an international armed conflict, and therefore those captured in the war on terror could not be subject to military detention and had to be detained in the civilian criminal system. The decision rejects all of the arguments for AUMF as domestic law and says that the AUMF specifically authorized the President to use all "necessary and proper" authority to carry out the war on terror. It reasons that the fact that Common Article 3 of the Geneva Conventions (the part of the GCs that govern non-international armed conflict) is silent on detention in non-international armed conflict leaves detention procedures up to the nation. Furthermore, all parts of the Geneva Conventions merely act as constraints on the state that require them to detain prisoners rather than summarily executing them. Since the Geneva Conventions are just restraints and not authorizations, the authorization of detention is up to individual states.

The petitioners next argument was that members of al Qaeda or the Taliban cannot be held as enemy combatants because they are not members of an organized armed force. The court actually agrees with the petitioners on this saying that members of al Qaeda and the Taliban are not directly participating with an organized armed force. The court then recognizes that the Obama administration is no longer claiming to detain prisoners in the war on terror as "enemy combatants". The decision says that while members of al Qaeda or the Taliban are not combatants they are not civilians even when they are not directly participating in hostilities, therefore the President can detain anyone who is a member of an organization he determines carried out the 9/11 attacks (al Qaeda and the Taliban as laid out by the AUMF). Membership is determined by someone having a "structured role" in the "hierarchy" of al Qaeda or the Taliban. It's very important to note here that the court found that sympathizers, propogandists, or financiers cannot be considered members under this reasoning and therefore are not subject to military detention unless they directly participate in attacks. Others who cannot be militarily detained using the reasoning above are doctors, clerics, or those that merely shelter al Qaeda or Taliban members. In the end the court upholds the new "substantial support" standard proposed by the Obama administration, but refused to set a bright-line framework for determining what substantial support means deciding that a case by case analysis will be necessary.

I like this decision for a couple of reasons. First, it finally gives us some judicial lens with which to view the new detention standard. I was curious to see how courts would distinguish the new "substantial support" from the old standard of any ol' kind of support and here we get a glimpse as to how it might be different. Second, and more specifically, I like that the court recognizes the war on terror as a non-international armed conflict because I never thought that the war on terror was a full fledged armed conflict. Furthermore, I think that distinguishing the members of al Qaeda and the Taliban as something less than combatants but more than civilians is the right way to go.

I don't think that all parts of this opinion will stay the same through the appeals process. I think that the part of the opinion most likely to get changed is the argument that Common Article 3's lack of authorization for detention actually authorizes each individual nation to implement its own detention procedures. I'm always wary of an argument that derives its support from the lack of law's specificity. Other than that argument, pure gut feeling tells me that the D.C. Circuit will uphold this decision in its entirety and any changes that come could expand the government's powers a little bit. Supreme Court review is likely I think, but it is hard to say how that would turn out because by the time this gets to the Court the bench may be different. I think that if the Court were to review this case as it is composed today that we might see more specificity as to what "substantial support" means.

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