The Jurisprudence of Detention: Definitions and Cases

Almost a year has passed since the Supreme Court’s decision to extend habeas rights to Guantanamo in Boumediene. Detention policy is currently under review by interagency task forces; it is worth looking at what the developing body of detention rulings say about the future of detention.

Taking prisoners is an unavoidable part of military action. Telling our troops that they can engage identified enemies with lethal force but cannot detain them puts them in an impossible position.

But who can we hold? The Taliban foot soldier is an easy case, but as we move away from the battlefield things get a little fuzzy. A chronological review of the decisions regarding detainee status gives some insight.

Salim Hamdan

The first case comes from the military commissions convened in Guantanamo. Though it predates Boumediene, it puts the question of who is an unlawful enemy combatant in front of a judge.

Salim Hamdan was the petitioner in the Supreme Court case that invalidated military commissions established by executive order. Congress responded to his victory at the Supreme Court with the Military Commissions Act (MCA) to establish legislatively-sanctioned commissions, but their jurisdiction is limited to “alien unlawful enemy combatants.”

Following the passage of the MCA, Hamdan’s defense counsel filed a motion for an additional hearing to determine whether he was a lawful or unlawful combatant. If he was a lawful combatant, then the commission would lack jurisdiction and he might then be prosecuted in a court-martial. Lawful combatants (i) have a commander, (ii) wear uniforms or a distinctive symbol, (iii) bear their arms openly, and (iv) follow the laws of land warfare.

Captain Allred, the officer presiding, granted the defense motion.

Allred found that Hamdan’s service to Al Qaeda as Osama Bin Laden’s driver and occasional bodyguard, pledge of bayat (allegiance) to Bin Laden, training in a terrorist camp, and transport of weapons for Al Qaeda and affiliated forces supported finding him an enemy combatant. Hamdan was captured at a roadblock with two surface-to-air missiles in the back of his vehicle. The Taliban had no air force; the only planes in the sky were American. Hamdan was driving toward Kandahar, where Taliban and American forces were engaged in a major battle. The officer that took Hamdan into custody took pictures of the missiles in Hamdan’s vehicle before destroying them.

Hamdan’s past association with the Ansars (supporters), a regularized fighting unit under the Taliban, did not make him a lawful combatant. Though the Ansars wore uniforms and bore their arms openly, Hamdan was taken into custody in civilian clothes and had no distinctive uniform or insignia.

Based on his “direct participation in hostilities” and lack of actions to make him a lawful combatant, Captain Allred found that Hamdan was an unlawful enemy combatant.

Decisions Under the Enemy Combatant Definition

Following Boumediene, detainees have had their cases heard by federal judges. The District Court for the District of Columbia adopted and applied the following definition, and the government need only prove it by a preponderance of the evidence:

An “enemy combatant” is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

District Judge Richard J. Leon moved through these cases quicker than his colleagues and gives us several decisions to look at.

Lakhdar Boumediene, et al.: Five ordered released, one detained. This is the set of six petitioners that won the right to habeas corpus hearings at the Supreme Court. They were picked up in Bosnia and allegedly planned to travel to Afghanistan to fight against American forces. Judge Leon ordered five of the six released because the word of an unnamed informant was simply not enough to justify their detention. Since the evidence was insufficient to determine that a plan to travel to Afghanistan existed, Judge Leon did not reach the question of whether such a plan would constitute “support.” Leon found that the sixth man, Belkalem Bansayah, was an enemy combatant based on corroborating sources and evidence that he was adept in using false passports in multiple fake names and was facilitating the travel of others to fight in Afghanistan. This constituted “support” necessary to find him an enemy combatant.

Hisham Sliti: One detained.  Sliti is a Tunisian who traveled from London to Afghanistan on a false passport. He was detained in 2000 by Pakistani authorities because of his false passport and had an address book with contact information for radical extremists. He escaped back into Afghanistan and was later re-captured fleeing the American military in 2001. Judge Leon found that he had traveled to Afghanistan with the financial support of extremists with well-established ties to Al Qaeda, spent time with Al Qaeda-affiliated radicals, stayed at a guesthouse associated with Al Qaeda that served as barracks for terrorist training camps, and that other guests at the house were instrumental in creating terrorist cells. By his own admission, he knew the location, appearance, and code words used by those attending the nearby training camp.

Moath Hamza Ahmed al Alwi: One detained. Al Alwi is a Yemeni who traveled from Saudi Arabia to Afghanistan to fight alongside the Taliban against the Northern Alliance. Judge Leon found that al Alwi could remain in custody based on the evidence that he had trained at Al Qaeda camps, stayed at Al Qaeda guesthouses, fought on two fronts with the Taliban, and did not leave Afghanistan until his Taliban unit was bombed on two or three occasions by American aircraft.

Mohammed el Gharani: One ordered released.  El Gharani is a Saudi who went to Pakistan around 2001. The government alleged that he had been a member of an Al Qaeda cell in London, stayed at an Al Qaeda-affiliated guesthouse, and fought American forces at the battle of Tora Bora. Judge Leon did not find these claims credible, as all of them were based on the word of fellow detainees. The government also alleged that he had been a courier for Al Qaeda, but had insufficient evidence to back up this claim.

In the above cases, six detainees have been ordered released and three met the criteria to be classified as “enemy combatants.”

Transition From “Enemy Combatant” to “Substantial Support”

The Obama administration has since dropped the term “enemy combatant” and changed its claim of detention authority:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

The first decision under the new definition came down from District Judge Ellen Huvelle.

Yasin Muhammed Basardh: One ordered released. Basardh is a Yemeni who was arrested in early 2002 and transported to Guantanamo Bay. He cooperated with detention authorities, giving information about his fellow detainees. As a result, other detainees physically assaulted him and threatened to kill him. Judge Huvelle determined that widespread disclosure of Basardh’s cooperation with the government renders his prospects for rejoining terrorists “at best, a remote possibility.”

Judicial Review of the Authority to Detain

The definitions of “enemy combatant” and the power claimed by the Obama administration are very similar, and the addition of “substantially” is probably only going to affect marginal cases.

A recent review of the revised claim of detention power broadly approved the government’s power of detention. District Judge Reggie B. Walton accepted, in a slightly modified form, the general power of the government to detain those who have participated in hostilities. In doing so, he rejected a detainee’s claims that the Authorization for Use of Military Force passed after 9/11 did not allow military detention and that detainees must be tried in a civilian court or released.

Judge Walton adopted the following definition for detention decisions:

[I]n addition to the authority conferred upon him by the plain language of the AUMF, the President has the authority to detain persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms “substantially supported” and “part of” are interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture.

Judge Walton did limit the government’s detention authority to those part of the “command structure” of Al Qaeda and the Taliban. This precludes detaining “[s]ympathizers, propagandists, and financiers” that may be part of enemy organizations in an abstract sense but who are not part of the organizations’ command structure. Judge Walton also did not resolve the issue of organizations and individuals “associated” with the Taliban and Al Qaeda.

Though Judge Walton rejected the petitioners’ “direct participation in hostilities” standard for detention in favor of the government’s “substantial support” standard, he explicitly authorized detention of an Al Qaeda “member tasked with housing, feeding, or transporting” members of the organization. An Al Qaeda cook who trained at a terrorist camp can be detained just as “his comrade guarding the camp entrance.”

The competing definitions can often arrive at the same conclusion. Captain Allred determined that Salim Hamdan was an unlawful enemy combatant for a combination of the “substantial support” activities under the “direct participation in hostilities” standard.

Conclusion

The cases above illustrate that the general principles of detention have not changed significantly with adjusted definitions. The terms “enemy combatant,” “direct participation in hostilities,” and “substantial support” will be interpreted by judges on a case-by-case basis much like a finding of probable cause to issue a warrant or justify a search.

Time to End the War on Drugs

Gov. Arnold Schwarzenegger is calling for a large-scale study on the question of  whether to legalize marijuana.  Arnold wants the study to include international comparisons to show the possible impact of such a change.  Cato just released such a study concerning Portugal.

Our friends at NORML are running ads like this in some markets.

Over at Reason, Jacob Sullum takes a look at national Zogby poll numbers, which shows that a majority of voters support marijuana legalization.

New Doherty Book Review

There is a new review of Brian Doherty’s book, Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment, over at The American Spectator.

The review captures the uphill battle that the Heller litigants faced in the District of Columbia:

When an employee on the Taxicab Commission once suggested that taxicab drivers be able to arm themselves for self- defense, a spokesman for then mayor Anthony Williams said, “The proposal is nutty, and obviously, it would not be entertained seriously by any thinking person.” After D.C. readjusted its laws in the wake of Heller so that guns were no longer prohibited but regulated to the point of making ownership exceedingly difficult, Mayor Adrian Fenty justified it thusly: “I don’t think [the people of D.C.] intended that anybody who had a vague notion of a threat should have access to a gun.” Apparently the mayor doesn’t know or doesn’t care that once a threat is real, it’s probably too late to go through all of the city’s regulatory hoops.

Cato held a book forum for the event, which is available here.  Also check out Reason TV’s videos of Brian discussing this historic legal battle, both before and after the decision came down.

Taxpayers Deserve Better from the President

President Obama’s estimated $17 billion budget cuts for fiscal year 2010 amounts to a measly .5 percent of the president’s total proposed spending, and 1.5 percent of the president’s proposed deficit for the coming fiscal year. His offerings to cut the budget should be dismissed as unserious. In fact, this is reminiscent of the Bush administration’s annual list of minuscule proposed cuts in the face of profligate spending and mounting federal debt.

President Obama says his efforts “are just the next phase of a larger and longer effort needed to change how Washington does business and put our fiscal house in order.” Promising more spending and more debt while celebrating relatively insignificant cuts and ignoring the looming entitlement crunch represents businesses as usual, not change. Current and future taxpayers deserved a serious proposal to reduce the government’s burden on their wallets and the struggling economy. Instead, the president’s first budget represents an attempt to shove the government’s hand deeper into the American peoples’ pockets and lives.

The president made several questionable statements in his address earlier today. He promised “long overdue investments” in education. But federal spending on education has already increased dramatically with no positive results. He spoke of “undertaking health care reform so that we can control costs while boosting coverage and quality” and “investing in renewable sources of energy.” Yet we know any type of reform will mean higher taxes, government rationing, and slower economic growth.

Vouchers and Violence

The front page of the tabloid Washington Examiner blares

Violence mars students’ days
Weapons, assaults common at area schools

Now I know that headlines have to be short to fit the space. But a more accurate headline would read

Weapons, assaults common at government-run schools

Fights, sexual assaults, and deadly weapons, described in the article as happening “almost once a day at some area high schools,” are almost nonexistent at private schools. Which is why it’s such a shame that the small number of District of Columbia students who have been granted a voucher to escape the D.C. public schools are going to lose that lifeline if the Democratic majority in Congress gets its way. I once proposed in the Washington Post:

The D.C. school board should declare an educational emergency and offer a voucher good in any private or public school in the District to every student who is assigned to a school that has had a shooting or stabbing or more than one weapon confiscation in the past year, whether on school property or on school buses.

I called it the “voucher trigger provision,” but the Post went with the more sober title “A Right to Safer Schools.”

But the policy shouldn’t be restricted to D.C. students. The Examiner article is in fact not about the D.C. schools; it’s about the suburban schools in Maryland and Virginia. Suburban kids would also benefit from more choice, including the choice to move from dangerous to safe schools.

Obama’s Budget Cuts

The Obama administration has issued a modest list of budget cuts for programs that are “duplicative” and “ineffective.”

That’s a good start for spending reforms, but a more substantial way to end “duplication” would be to terminate all $500 billion of federal subsidies sent to state governments each year, which duplicate properly state-level activities such as highway building.

Further, cutting some “ineffective” programs ignores the broader question of whether programs represent just and legitimate uses of government power. We can make farm subsidies more “effective,” for example, but that does not make it ethical to transfer $20 billion each year from hard-working taxpayers to often high-income farm businesses.

I’d like to see the Obama administration attack Washington’s overspending problem in a more dramatic and fundamental way.

For now, here’s a great place to start:

Bank Stress Tests: Full of Sound and Fury…

Even with the stress tests completed, the Obama Administration lacks an exit strategy for its deepening involvement in supporting these banks.

What the administration needs to do is give the American people a road map for getting out of the business of owning banks. However, instead of a roadmap, the Administration keeps digging more potholes. Secretary Geithner’s recent remarks, in which he suggested imposing additional requirements before letting banks repay their TARP obligations, raise serious questions regarding the administration’s desire to actually exit the current situation. Treasury should reconsider its position and not only allow banks to repay, but encourage them to do so. The quicker we get these institutions out from under the government, the quicker our financial markets will get moving again.

As the witching hour of 5 pm on the East Coast approaches, when the Treasury will release both aggregate and individual stress test results, the overwhelming feeling in Washington and on Wall Street is one of closure: finally the circus can come to an end. In terms of the actual results, details of which have been leaking for days, the stress tests come close to telling us absolutely nothing we did not already know.

One purpose of the stress tests was to determine if the 19 bank holding companies could withstand “higher losses than generally expected.” However, what started out as extreme economic projections are beginning to look like the consensus forecast. For instance, the stress tests assume a base case level of unemployment of 8.9 percent for 2010, and an extreme “stress” level case of 10.3 percent for 2010. There’s a good chance that we’ll reach that extreme; what the new extreme is, one can only guess, but what we do know is that the banks have not been tested for it.

While the aggregate results have yet to be released, it is a good bet that they will fall somewhere within the range of exactly just how much TARP funds Treasury has left. We can expect Treasury to announce capital shortfalls of just over $100 billion, while the real shortfalls are likely to be in excess of $200 billion. Treasury is understandably reluctant to go back to Congress for additional TARP funds, so it will likely do its best to stretch its existing resources.

One way of stretching those resources is converting preferred equity holdings into common stock. How this is to be done, and what kind of voting rights Treasury will have is yet to be seen. As Treasury has repeatedly said it will not let any of these banks fail, shifting the government’s holding from preferred to common equity is little more than an accounting game that fails to address the underlying economic realities at many of these institutions.