After the Supreme Court ruled in 2008 in Boumediene v. Bush that the detainees at the Guantánamo Bay detention facility are entitled to habeas corpus to challenge the legality of their detention, the U.S. District Court for the District of Columbia started to take action on the hundreds of petitions filed. In these habeas proceedings, the court has faced the threshold legal question of the scope of the government’s authority to detain pursuant to the 2001 Authorization for Use of Military Force.I thought it would be interesting to see how the D.C. District Court delimited the permissible bounds of the government’s detention authority, specifically focusing on whether the court’s decisions are consistent with the internment standards under the law of war, international humanitarian law. My conclusions were recently published as Guantánamo Habeas Review: Are the D.C. District Court’s Decisions Consistent with IHL Internment Standards?, 42 Case W. Res. J. Int’l L. 197 (2009).
When my article was submitted at the end of August 2009, the D.C. District Court had ruled on 35 petitions and granted 29, under both the Bush and Obama Administrations. The D.C. District Court has now ruled on 41 petitions, granting 32.
Significantly, on Tuesday, the U.S. Court of Appeals for the District of Columbia issued its first opinion, Al Bihani v. Obama, reviewing a habeas petition on the merits.
In affirming a decision below that had denied relief, the panel of the D.C. Circuit (courthouse above left), in an opinion written by Judge Janice Rogers Brown (right), embraced a detention authority more expansive not only than international humanitarian law permits but also than the D.C. District Court has generally asserted.Both the Bush and Obama Administrations and the D.C. District Court have analogized to international humanitarian law of international armed conflicts in determining the internment standard to be applied to those detained in relation to what the Supreme Court in Hamdan v. Rumsfeld (2006), indicated to be a “conflict not of an international character” between the United States and al Qaeda in Afghanistan.
In their analogous application of international humanitarian law, both the Administrations and the court have analogized solely to the Third Geneva Convention, applicable to prisoners of war. No mention is made of the Fourth Geneva Convention, protecting civilians.
In my article, I discuss whether analogous application of international humanitarian law internment standards applicable to international armed conflict is appropriate in non-international armed conflict and, if so, in which form. I demonstrate that while it may be acceptable to apply the international humanitarian law standards of international armed conflict by analogy to non-international armed conflict, these standards do not and should not extend to any of those individuals at Guantánamo, who are interned in relation counter-terrorism operations not passing over the threshold into armed conflict.
My analysis indicates that the D.C. District Court’s application of the Bush Administration’s definition of “enemy combatant” and the refined standard provided by the Obama Administration are in some ways narrower and in other ways potentially broader than the international humanitarian law internment standards. Nevertheless, that court has done an admirable job in handling certain complicated and unsettled issues under international humanitarian law, such as the meaning of “direct participation in hostilities” and the analogous application of “combatancy” to non-international armed conflicts. While some of the factors that the judges of the D.C. District Court determined established “combatancy” raise concern of being beyond the scope of factors acceptable under international humanitarian law, the D.C. District Court appears to have thus far reined in the Administration’s standards in a manner more consistent with the definition of “combatant” as understood under international humanitarian law.
The recent D.C. Circuit’s decision, however, determined these international humanitarian law matters not to be of concern, as the court completely rejected the premise that international humanitarian law constrains the authority conveyed by the AUMF to detain. The court determined that international humanitarian law is “not a source of authority for U.S. courts.” The court did so despite the ruling of the Supreme Court in Hamdi v. Rumsfeld (2004) and despite the government view that international humanitarian law has a role in the interpretation of the AUMF’s grant of authority, as pointed out in Senior Judge Stephen F. Williams' concurrence.
The Circuit Court’s decision provides much for discussion.
Suffice it to say for the purpose of this posting that those who had hoped, either that the exclusion of international humanitarian law from the determination of the scope of detention authority or that D.C. Circuit’s clarification of the District Court’s differing interpretations of the internment standard would narrow the scope of government’s authority to detain, find themselves concerned and disappointed.
