Hamlily v. Obama: Judge Bates Departs From Judge Walton's Decision On Detention Authority - Or Does He?

Voodoo comes to you today from beautiful Kiawah Island, SC. Yeah that's right I'm on vacation, but my commitment to the blog is not diminished. Today's topic: the new D.C. District decision in Hamlily v. Obama. Less than a month after Judge Walton's opinion in Gherebi v. Obama (I have an old post about that decision) interpreted Obama's new detention standard, Judge Bates puts forth this decision in Hamlily v. Obama that interprets the standard in a more restrictive way. The major difference in the two opinions is that Gherebi adopts the new "substantial support" standard where as Judge Bates refused to recognize detention power over those that only substantially support al Qaeda or the Taliban in Hamlily, and instead said that the military can only detain active members of al Qaeda, the Taliban, or co-belligerents/associated forces. Membership in these groups is determined by whether the person "functions or participates within or under the command structure of the organization." Specific acts that tend to show membership include: an oath of loyalty, training at an al Qaeda camp, staying at an al Qaeda guest house, or taking up a position with an enemy force in the field. While the court posits these examples it is careful to say that the list is not exhaustive and that membership determination needs to be judged on a case-by-case basis. Futhermore, the opinion supports Judge Walton's definition of the fight against al Qaeda and the Taliban as a non-international armed conflict. By defining the conflict in this way the court is able to get around petitioners' argument that they cannot be considered part of an armed force,,therefore they are civilians and not subject to military detention.

So we've got two opinions that look facially different in a pretty significant way - one recognizes "substantial support" and one does not. But are they actually different? I'm not so sure. Hamlily says that membership in al Qaeda or the Taliban is determined on a case-by-case basis and the determination in each case is based on the quantity and/or quality of actions by the individual that relate to the organization. By that logic you could have a person who performs functions that are traditionally considered supporting tasks, but evidence could be presented to show that those tasks are of a sufficient quality, or are performed in sufficient quantity, that they rise to the level of making that person a member of a terrorist organization. Judge Bates's opinion actually recognizes this fact on page 19 of his opinion. It seems to me that the argument as to whether "substantial support" is a basis for military detention or not is a non-issue when this kind of functional test is applied on a case-by-case basis.