I am wary of brushing with broad strokes, and I suppose President Obama is deserving of a wee but of lee-way, but I’m getting sick of feeling the cynical “meet the new boss, same as the old boss.” Again, at the risk of even pointing to an AP article, the AP says that U.S. District Judge John Bates has ruled that the United States can continue to hold detainees indefinitely. This policy, of course, was created under the Bush administration with the help of a pliant Congress. The reason why Obama is deserving of scorn is that it provided Judge Bates with a definition of who can continue to be held at Gitmo: those who the president has determined “planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks,” as well as those “who are or were part of 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 (i.e., directly participated in) a belligerent act in aid of such enemy armed forces.”
Judge Bates opinion (Hamlily et al., v. Obama, No. 05-0763 (JDB) (civil) (D.D.C. 2009) (and others)) is interesting in a number of ways.
- First, it notes that the Government no longer argues that authorization for detention comes from the President’s authorities under Article II of the Constitution, but from Congress’s Authorization for the Use of Military Force. Hamlily at 1 n.1. I suppose that’s refreshing from an overreaching-Executive perspective, but it still doesn’t change the fact that indefinite detention is still being sought.
- Second, Judge Bates bases his opinion on a prior, substantially similar case, Gherebi v. Obama, Civ. A. No. 04-1164, 2009 WL 1068955 (D.D.C. Apr. 22, 2009) which states that the law of war actually supports the detentions.
- Third, Judge Bates rejects the Government’s detainability framework–which includes “substantially support” (language cribbed from 18 U.S.C. § 2339A)–insomuch as it includes “support.” (Everything else, as I’ve noted, is fine.) The reason for this? Judge Bates “can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of ‘support’ as a valid ground for detention.” Hamlily, at 7.
- Fourth, Judge Bates has noted that the government has abandoned the argument that the detainees are “enemy combatants,” because such a classification doesn’t exist in a “non-international” conflict. Id. at 13, citing Int’l Comm. of the Red Cross, Official Statement: The Relevance of IHL in the Context of Terrorism (July 21, 2005) available at http://www.icrc.org/Web/eng/siteeng0.nsf/html/terrorism-ihl-210705. As such, “The Court also concludes that the authority claimed by the government to detain those who were “part of . . . Taliban or al Qaida forces” is consistent with the law of war. Even though this portion of the government’s framework is consistent with the law of war, however, the government’s position cannot be said to reflect customary international law because, candidly, none exists on this issue.” Id. at 15.
There are other nuggets in there, but that’s the gist of the opinion. It’s surprising to see some of the things the Obama administration was asking for (such as advocating for the indefinite detention of those who provide financial support), and it really does make one ask what’s going on? Is it, like some are arguing vis-a-vis the release of the abuse photos, that the Obama administration is really just trying to lay out a sop that will eventually get rejected? If so, that’s a risky move, in my opinion, as Courts have been brow-beaten into submission to make sure they don’t step on the President’s toes. See Hamlily at 6. Or is it that Obama really has no interest in the Change message he ran on, as satirized by the Daily Show?
I don’t know the answer, but I know I’m not the only one getting restive.
