Guantánamo 9 years on

Today, January 11, 2011, marks the ninth year of the existence of the detention center (left) at the U.S. Naval Base at Guantánamo Bay, Cuba.
Translate that to measure the effect on human beings. What this means is that scores of men have been detained by the United States for nine years now, in prison-like conditions, without trial.
Detention for nine years without trial.
If I appear impassioned, forgive me. But, yours truly has represented Guantánamo detainees for close to nine years—almost as long as the detention camp has been around. Over the years, I have:
► Played a direct role in the litigation journey that ended in the U.S. Supreme Court judgment in Boumediene v. Bush (2008) (prior posts).
► Seen several bills pass in attempt to restrict the rights of the detainees.
► Seen numerous military commissions start and stop. Child soldier Omar Khadr (right), whom I represented for a short time, has faced no fewer than three different military commissions, operating under different rules.
► Seen my clients on hunger strike. And I heard from my fellow habeas counsel the stories of attempted suicides, successful suicides and whispers of homicide. In total, six men have died in custody.
A lot has happened in these last nine years, though for the detainees there, frankly, too little has happened. In those circumstances nine years can seem like a lifetime. And for some of those men, detention at Guantánamo may be a lifetime.
This brings us to the current state of Guantánamo and the detainees.
Of the original 779 detainees, 599 have been released, but 173 men remain in the detention camp. Despite the executive order issued by President Obama in January 2009 that calls for the closure of the detention camp within a year, which I wrote about here, Guantánamo remains open. And as posted by IntLawGrrl Diane Marie Amann this weekend, the most recent piece of legislation signed into law just a few days ago—The National Defense Authorization Act for 2011—makes it clear that closing Guantánamo will be very difficult. This Act:
► Prohibits the use of funds authorized by the bill for the transfer or release to the United States (or any U.S territory or possession) of Guantánamo detainees, including 9/11 defendant Khalid Sheikh Mohammed, who is specifically named.
► Requires certification from a foreign country regarding the transfer of Guantánamo detainees to that foreign country. The country must certify, among other items, that it: is not a sponsor of terrorism; maintains control over the detention facility; has agreed to take steps to ensure the individual won’t take action to threaten the U.S.; and has agreed to share information with the U.S. regarding the individual.
► Prohibits the use of funds authorized by the bill to modify or construct facilities in the U.S. to house detainees from Guantánamo for detention or imprisonment in the custody of the Department of Defense.
On Friday, January 7, President Obama signed the bill into law but issued a signing statement that specifically address two of the provisions relating to Guantánamo: the restriction on transfer into the U.S. and the certification requirement from foreign countries. (photo credit) Some criticized it as weak. But as Diane's post observed, the signing statement includes a pretty clear denouncement of Congress’ attempt to intrude on executive prerogative. Obama wrote:

'Section 1032 represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security.'

President Obama also stated that his administration would

'work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.'

The confrontation between the two branches is certainly interesting, and will require a watchful eye as to exactly how the administration will work with a new Congress that now has a Republican majority in the House.

A more interesting and disheartening development, I believe, are reports of a pending executive order on indefinite detention.

On Sunday, Laurie Blank contributed an IntLawGrrls guest post criticizing such an attempt to routinize indefinite detention. Also well worth reading is the extended article by Dafna Linzer (right), a ProPublica national security reporter, available here. (credit for photo by Lars Klove)

According to Linzer, the White House has been busy for over a year preparing an executive order that sets forth a system for indefinite detention. This system would enable detainees to challenge their detention on a regular basis by requiring a minimal review every six months and then a more lengthy annual review before a ‘parole-like’ board made up of officials from civilian and military agencies. Further, detainees would have access to an attorney to assist them in the process. This review would not replace the court habeas review required by Boumediene, but would supplement it. In essence, the executive review would weigh the necessity of the detention, rather than its lawfulness. The ‘parole board’ would have the authority to release the detainee if appropriate.

The National Defense law just enacted, however, with its severe restrictions on transfer to third countries, would fairly undermine this assertion of executive authority.
In the end:

There are still men at Guantánamo, who by either court order or executive determination (recall the Guantanamo Review Task Force Report that identified approximately 50 men who could neither be tried or released), will continue to be detained without trial either at Guantánamo or elsewhere.

It has already been nine years of detention for the men at Guantánamo, and recent events only confirm that indefinite detention may very well be a reality for some of these men. Equally disturbing, it may very well be a permanent part of our democratic society.

Detention, trials & American values

(Delighted to welcome back alumna Laurie Blank, who contributes this guest post)

As Professor Amos Guiora and I argue in "Don’t Deny Detainees Their Day in Court," an op-ed published a few days ago in the Los Angeles Times, the idea that every person deserves his or her "day in court" is a fundamental principle in the United States and many countries worldwide. Yet more than nine years after 9/11, the United States remains paralyzed not just about how to give the thousands of detainees in U.S. custody around the world their day in court but about whether to give them that day in court.
Multiple judicial forums have been created to try nonstate actors who have perpetrated war crimes from Rwanda to Sierra Leone to Cambodia to the former Yugoslavia — to give them their day in court. That makes the failure to answer this question for post-9/11 detainees particularly perplexing and deeply troubling.
Two successive administrations have been incapable of answering what should be the most basic questions: if, how and where to try terrorists. In the meantime, post-9/11 detainees languish in indefinite detention. The result is a fundamental and overwhelming violation of the rights of individuals who are no more than suspects, in either past or (more problematic) future acts.
The Obama administration reportedly now intends to issue an executive order establishing indefinite detention without trial for detainees at Guantánamo Bay. Such a decision would formalize this violation of basic rights. Denying individual accountability would now be official U.S. policy and law.
The claim that granting prisoners the right to file petitions for habeas corpus and receive regular reviews is sufficient is disingenuous. At best, that only addresses detention status, without doubt an important question. But it does not facilitate the resolution of individual accountability, the principle that requires that an individual have the opportunity for adjudication of his or her guilt or innocence. It is wrong morally, not to mention legally.
The first step, therefore, is to determine that individuals detained post 9/11 deserve their day in court, just like domestic criminals and perpetrators of war crimes. The next step is to implement a mechanism that can do so fairly and effectively. Speedy resolution is, by now, wishful thinking at best.
Unfortunately, for the last nine years, the U.S. has skipped the first step, and has let narrow political considerations devoid of morality, legality and decency determine the nature of the second step. Decision-makers talk of constitutional law and a "beacon on the hill," but acting on that talk seems to present overwhelming challenges. Principles have been discarded in the name of expediency.
Just as crimes grant the state the power to punish, so the state owes the detainees a duty of resolution, a duty to give them their day in court and either prosecute or release, convict or acquit. In the absence of an effective framework to do so, the state is engaging in unconscionable behavior - with an immunity largely granted by Congress and courts alike. Supreme Court and congressional acquiescence in the face of executive power has historically ill-served the American people.
Those who argue that indefinite detention accords with the treatment of prisoners of war gloss over two key distinctions: POWs are held in protective custody and released at the end of hostilities, whereas post-9/11 detainees are held in de facto punitive detention and terrorism has no end to trigger release. Those who want to argue that we are at war with al-Qaeda and other terrorists fail to consider that the law of war and principles of morality in armed conflict do not countenance such an approach, where detainees face the prospect of generational, even lifetime, detention without charge or trial.
Under the law of war, detention is a fundamental aspect of the authority to wage war and has the critical purpose of removing enemy fighters from the battlefield.
Within this framework, POWs are held as a preventive measure – states cannot prosecute POWs for engaging in lawful belligerent acts, i.e., for simply being enemy soldiers fighting on the battlefield. Battlefield detention is lawful and appropriate within this framework and there is no obligation to prosecute or release in this paradigm. The similarity to the indefinite detention we talk about today for detainees at Guantanamo thus lies in the fact that POWs are held without charge and for an unknown (but, critically, not undefined) period of time.
It is the differences that are critical here, though. The differences stretch traditional law of war detention to the extreme and create the effect of forcing a square peg into a round hole. Geography, lawful belligerency, suspected criminality, time parameters – each of these creates another stretch, another tear in the fabric.
► First, battlefield detention is just that – detention of those picked up on the battlefield.
As I’ve noted in an earlier blog post, defining the battlefield in the current conflict against Al Qaeda and other terrorist groups is a critical task, albeit one not yet undertaken or accomplished. We therefore face a situation in which detainees may be held indefinitely under this new framework even if they were picked up either far from a battlefield or – perhaps – in an area where we are uncertain if it is the battlefield. If we cannot identify the battlefield, how can we identify battlefield detainees?
► Second, law of war detention is designed to hold enemy fighters until the “cessation of active hostilities.” In World War II, we held German soldiers for several years, until the end of the war. Several years – not a lifetime. The nature of terrorism and counterterrorism is that we are not going to defeat terrorism; rather, terrorism is something to be managed, minimized, defended against. Not only can we not envision an end to the hostilities, but more problematic, we have absolutely no way of identifying what that end might look like. Sure, we might defeat Al Qaeda in some meaningful way, ending their ability to launch any effective attacks against the U.S. or its allies, but some other terrorist group will take up, or have already taken up, the same fight and we will still be engaged in a conflict with terrorist groups. The consequence of this uncertainty and this very nature of terrorism is that indefinite detention effectively means generational, if not lifetime, detention. Such detention is on another scale entirely from law of war detention as we know it.
► Finally, belligerency and criminality also raise questions here. Law of war detention is primarily designed for lawful belligerents, prisoners of war. The U.S. has gone to great pains – and rightly so in most cases – to argue and demonstrate that the folks at Guantanamo are not lawful belligerents. Rather, they are persons not entitled to any form of privileged combatancy under traditional principles of international law. Still more, they are generally persons we suspect (or could likely prove depending on the evidence available) have committed violent crimes against Americans, American interests and our allies. Unlike law of war detention, therefore, where individuals held in protective custody are specifically not suspected of or charged with any crime, the detainees to be held in indefinite detention are effectively held in punitive custody, suspected of culpability in violent, criminal terrorist attacks but neither charged nor prosecuted.
Indefinite detention in these circumstances is a square peg in a round hole and completely undermines the basic notion of individual accountability, thus constituting a fundamental miscarriage of justice. The United States, uncertain whether the detainees are criminals or more akin to fighters in an armed conflict, must still grant them the basic right to a day in court. Without that, individual accountability is simply eliminated, effectively saying that the adjudication of individual liability is burdensome, perhaps even irrelevant.
This is not the American way; rather, it is a repudiation of American values. Whatever method of trial one prefers – civilian courts, national security courts, or military commissions, the time has come to decide and adjudicate.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

Thus, at least for now, extension of the writ to overseas detention has stopped at Guantánamo.

-- Faiza Patel (left), Director of Planning and Counsel at the Brennan Center for Justice, New York University School of Law. The sentence concludes her ASIL Insight analysis of the Bagram-related decision last month in Maqaleh v. Gates (D.C. Cir. 2010), about which IntLawGrrls guest/alumna Daphne Eviatar also posted. A Supreme Court nose count is the basis of Patel's prediction that the decision -- which she terms "striking" for its emphasis on the decades-old Johnson v. Eisentrager (U.S. 1950), rather than the recent Boumediene v. Bush (U.S. 2008) -- will stand for the time being.

An unfortunate detention incentive

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

In a surprising ruling with remarkably broad implications, the U.S. military has been told that it can seize suspected terrorists anywhere outside the United States, send them to the U.S.-run Bagram detention facility in Afghanistan, and thereby deprive them of the right to challenge their detention in a federal court.

Although the court didn’t address the issue, treating terrorism suspects this way is not supported by the laws of war as interpreted by the U.S. Supreme Court -- that Court has not authorized indefinite detention of individuals seized far from the battlefield.
The unanimous decision in Al Maqaleh v. Gates was issued last week by Judges David B. Sentelle, David S. Tatel, and Harry T. Edwards of the U.S. Court of Appeals for the District of Columbia Circuit. The case involves two Yemenis and a Tunisian, one of whom was arrested in Thailand and another in Pakistan, and all of whom were transported to Bagram by U.S. authorities and imprisoned there. Deemed “enemy combatants” when they were seized, they've been at Bagram, without charge or trial, for the past seven years. (Prior IntLawGrrls posts here and here.) (credit for U.S. Army photos made at BTIF, the Bagram Internment Theater Facility)
On its face, the situation of detainees brought to Bagram from outside of Afghanistan would seem to be similar to that of the detainees at Guantánamo Bay, who the Supreme Court in Boumediene v. Bush (2008) ruled do have the right to challenge their detention in a U.S. court.

► Both cases involve imprisoning foreign suspected militants captured abroad and brought to a U.S. military base for indefinite confinement. In Boumediene, the Supreme Court ruled that detainees do have habeas corpus rights because the U.S. has de facto sovereignty over its naval base in Cuba pursuant to a century-old lease. In Maqaleh, the appellate judges acknowledged that the United States appears to have similarly complete control over its Bagram facility in Afghanistan.
► As in Boumediene, the Court of Appeals also acknowledged in Maqaleh that the hearings the U.S. military was giving detainees at Bagram did not constitute due process; in fact, they were even worse than those provided at Guantánamo Bay. Although the hearings have improved over the past year under the Obama administration, the new Detainee Review Board system still doesn’t give Bagram prisoners the right to be represented by a lawyer or even to see the evidence against them. (Now detainees are appointed a “personal representative” who is not a lawyer, and may call witnesses who are “reasonably available” to testify. They still can’t see classified evidence, which may constitute the bulk of the government’s case against them.)
Still, although all this weighed in favor of the detainees’ demand for judicial review, the D.C. appeals court ultimately ruled last Friday that the “practical obstacles” of granting Bagram detainees habeas rights were just too great (p. 16), given that the prisoners are located in an active theater of war halfway across the world.
But should that determine whether the detainees are entitled to due process? Consider these responses:

► As American University Law Professor Steven Vladeck has pointed out, the only reason these detainees were in that theater of war is because the U.S. government had abducted them from other countries and sent them there. The ruling in Maqaleh thus creates a perverse incentive for the U.S. government to move every terror suspect seized anywhere outside the United States to a U.S.-run offshore detention facility, in order to imprison the suspect indefinitely and to evade judicial review.
► As Salon commentator Glenn Greenwald has put it, as a result of Maqaleh,

'the detainee's Constitutional rights depends on where the Government decides to drop them off to be encaged.'

If the detainees had been lucky enough to get sent to Gitmo, they might have had a federal court hearing by now.
Meanwhile, it’s not clear that the United States even has the legal authority to continue to detain anyone at Bagram.
The United States argues that its indefinite detention authority stems from the ongoing conflict in Afghanistan. But the war against the Taliban and al Qaeda is not an international armed conflict between nation-states. And there’s no legal authority for detention in a non-international armed conflict such as this one, where Afghanistan has its own domestic laws and criminal justice system. That may be why President Hamid Karzai during his most recent visit to the United States pressed President Obama to turn over the detention facilities to Afghan control as soon as possible.
The Obama administration says it eventually wants to do that.

But it says it doesn’t have enough confidence yet in the integrity and independence of the Afghan justice system to trust that the guilty will actually be imprisoned and the innocent will be allowed to go free. The United States has plans to train judges and lawyers at Bagram and to try to root corruption out of the justice system, at least in national security cases. But that effort has barely begun, and could take years to really have an impact. In the meantime, the U.S. is significantly expanding the prison facility.
Even if the Obama administration eventually does turn over Afghans arrested in Afghanistan to the local authorities, this question remains:

What to do with the rest of the prisoners – the ones who were the subject of the ruling in Maqaleh?

Some military officials want to keep the Bagram prison available for insurgents captured outside Afghan borders. U.S. military leaders in Afghanistan, meanwhile, fear that would inflame local tensions and make Bagram, like Gitmo, another recruiting tool for insurgents. Recent reports of prisoner abuse at Bagram only fuel that concern. But the prison expansion – which is reportedly adding three new detention housing units – suggest that plan has significant support.
International law is apparently not figuring much into these plans. If the laws of war had any say here, captured insurgents would be detained in the countries where they’ve been arrested or allegedly committed crimes. After all, the United States is not supposed to have detention facilities around the world – a point implicitly acknowledged when, upon taking office, President Obama publicly pledged to close most of them – from Guantánamo Bay to the CIA’s secret detention facilities around the world.
Bagram is the one prison he’s wavered on. Unfortunately, by its decision in Maqaleh the U.S. Court of Appeals in Washington has just handed Obama a big incentive to keep it open.

US ♥ international law

Well, sort of.
Consider this excerpt from the brief just filed by the United States in a Guantánamo detainee's habeas corpus case:

Petitioner cites the panel majority’s statement that the 'premise that the war powers granted by the [Authorization for Use of Military Force (2001)] and other statutes are limited by the international laws of war * * * is mistaken.' The Government agrees that this broad statement does not properly reflect the state of the law. The Government interprets the detention authority permitted under the AUMF, as informed by the laws of war. That interpretation is consistent with the Supreme Court’s decision in Hamdi v. Rumsfeld (2006), and with longstanding Supreme Court precedent that statutes should be construed as consistent with applicable international law.

Pp. 1-2 (citations switched to hyperlinks).
So said the United States' response to the petition for rehearing of the ruling of the U.S. Court of Appeals for the District of Columbia Circuit (courthouse above right) in Al Bihani v. Obama (2010). (Prior IntLawGrrls post) Indeed, in the body of its argument (pp. 6-9), the government repeated and expanded upon its nod to international law. In so doing, it cited case law familiar to those of us who labor in this field. For example:
► Murray v. Schooner Charming Betsy (1804), a precedent from the Court of Chief Justice John Marshall, was cited for the proposition that "an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains."
► United States v. Yunis (D.C. Cir. 1991), a judgment (by a panel included then-Judge Ruth Bader Ginsburg, along with then-Chief Judge/now IntLawGrrls guest/alumna Patricia M. Wald and the opinion's author, Abner Mikva) arising out of a 1985 cross-border, terrorism-linked hijacking. Yunis was cited for the proposition that "courts will not blind themselves to potential violations of international law where legislative intent is ambiguous."
Notably, the U.S. position in this brief stands at odds with that taken in the Military Commissions Act of 2006; in section 5(a), Congress forbade anyone to "invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action ... as a source of rights in any court of the United States or its States or territories."
At both junctures of its Al-Bihani brief, however, United States argued that international law offers no reason to grant the detainee's petition for rehearing. Here's page 2:

[N]one of this changes the outcome ... The panel majority specifically addressed and properly rejected petitioner’s argument under international law. That unanimous ruling is correct and does not warrant rehearing or rehearing en banc.

What the government giveth ....

D.C. Circuit disappoints

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

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.

Enemy Combatant: A Genealogy

As we’ve discussed, the term “enemy combatant”—whether lawful or unlawful—is not a term of art in international humanitarian law (IHL). Until it was recently retired by the Obama Administration, however, the term had been a key feature of the “War on Terror" lexicon. With the expert assistance of my ace research assistant, Rockford Hearn (right), I have been constructing a genealogy of the term in light of its linguistic demise. Since its inception, the definition of "enemy combatant" has seen significant evolution with respect to its two constitutive parts:

1. enemy &
2. combatant.

1. Ex Parte Quirin

Although of modern relevance, the term traces its roots to the U.S. Supreme Court’s opinion in the infamous WWII German saboteurs case. Ex Parte Quirin, 317 U.S. 1 (1942). This case concerned eight individuals, one a citizen of the U.S., who exited German subs and came ashore in civilian clothes intent on engaging in acts of sabotage. (The case's namesake is at left). On their petition for a writ of habeas corpus, the Supreme Court identified a category of belligerent who was not entitled to prisoner of war (POW) treatment:

[t]he spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeing to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property [would exemplify] belligerents who are generally deemed not to be entitled to the status of prisoner of war, but to be offenders against the law of war subject to trial and punishment by military tribunals (p. 31).

After the FBI caught the saboteurs, the president issued a proclamation stating:

All persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals (pp. 22-23).

The men were charged and transferred into military custody for prosecution before a military commission. In denying their petition for a writ of habeas corpus, the Supreme Court distinguished between lawful and unlawful combatants, noting that while lawful combatants are to be classified as POWs, and are subject to capture and detention, unlawful combatants are additionally “subject to trial and punishment by military tribunals for acts which render their belligerency unlawful” (p. 31). The Court used several monikers in referring to the petitioners (including “unlawful combatants,” “enemy belligerents,” and “enemy combatants”), implying that it was not employing these terms in any technical sense. Indeed, the Court cautioned that

[w]e have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war (pp. 45-46).

The petitioners were executed after the decision was announced but before the Court released its opinion.

2. 2001 Military Order

Fast forward to the immediate aftermath of the attacks of September 11th and President Bush’s Military Order of November 13, 2001. This Order authorized the detention of any non-citizen whom the President determined there was reason to believe:

1. is or was a member of the organization known as al Qaeda;
2. has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or
3. has knowingly harbored one or more individuals described [elsewhere in] this order.

This definition focuses on three categories of person:

• members of al Qaida,
• those who committed acts of international terrorism aimed at, or adversely effecting, the United States (including by aiding, abetting, conspiring, or preparing), and
• those who harbored individuals so engaged.

This definition is notable in that it does not presume the existence of any armed conflict or act of belligerency; rather, it is premised on the commission of acts of international terrorism or al Qaida (as opposed to Taliban) membership. The definition reveals two alternative criteria: membership and participation in acts of terrorism (including harboring).

3. Hamdi v. Rumsfeld

In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court again had occasion to consider this concept. In a June 28, 2004 decision, a plurality of the Court adopted for the purpose of the case the definition suggested by the Bush Administration:

An enemy combatant is an individual who was
1. Part of or supporting forces hostile to the U.S. or coalition partners in Afghanistan and

2. Who engaged in an armed conflict against the U.S. there (p. 516).

Recognizing, however, that the proper scope of the term “enemy combatant” was unsettled, the Court left the task of delineating its “permissible bounds” to the lower courts (p. 522).

The working definition in Hamdi first introduced the idea that individuals who were not part of a fighting force or organization may be considered enemy combatants if they nonetheless “supported” the group. It also suggested that the individual must “engage[] in armed conflict” against the United States in Afghanistan. This would imply that someone who was a part of the Taliban but left that group prior to the United States invasion in October 2001 would not qualify as an enemy combatant, because that person was never opposed to the U.S. or its coalition partners. This definition also is in the conjunctive: both membership and participation (this time in armed conflict rather than terrorism) are required.

4. Combatant Status Review Tribunal Definition

A mere two weeks later, the U.S. Navy promulgated a new enemy combatant definition in a July 7, 2004 memorandum to then Deputy Secretary of Defense Paul Wolfowitz (Memorandum from Deputy Sec’y of Defense Paul Wolfowitz to the Sec’y of the Navy, Order Establishing Combatant Status Review Tribunal (July 7, 2004)). The Memorandum provided that the term "enemy combatant" would henceforth mean:

1. an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the U.S. or its coalition partners.
2. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

This definition was subsequently incorporated into the rules utilized by the Combatant Status Review Tribunals (CSRTs) to determine whether individuals on Guantánamo were properly designated and detainable. The Navy/CSRT definition introduced the idea of “associated forces” beyond the Taliban or al Qaida. It also maintained the support element. The definition hinges more directly on mere membership and implies that even individuals who have not committed a belligerent act or directly supported hostilities would qualify for detention.

5. Military Commission Act (defining "Lawful" and "Unlawful" Enemy Combatants)

The Military Commission Act of 2006 (promulgated October 17, 2006) adapted this definition somewhat to identify a category of unlawful enemy combatants who would fall within military commission jurisdiction. By contrast, the Act provided that individuals who were deemed to be lawful enemy combatants could not be tried by military commission.

1. UNLAWFUL ENEMY COMBATANT
A. The term ‘unlawful enemy combatant’ means:
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. ...

2. LAWFUL ENEMY COMBATANT
A. The term ‘lawful enemy combatant’ means a person who is
(i) a member of the regular forces of a State party engaged in hostilities against the United States;
(ii) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms
openly, and abide by the law of war; or
(iii) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States (§ 948a).

A lawful enemy combatant is defined by way of membership criteria in accordance with the provisions set forth for prisoner-of-war classification scheme in Article 4 of the Third Geneva Convention. An unlawful enemy combatant, by contrast, is defined in terms of conduct—the participation in hostilities or the support of hostilities against the U.S.

In Boumediene v. Bush, 128 S.Ct. 2229 (decided June 12, 2008), the Court declined to address “[t]he extent of the showing required of the Government in these cases” (p. 2271). It noted: “[i]t bears repeating that our opinion does not address the content of the law that governs petitioners' detention. That is a matter yet to be determined” (p. 2277).

6. Al Marri v. Pucciarelli

The 4th Circuit in Al Marri v. Pucciarelli, 534 F. 3d 213 (decided July 15, 2008) also took a stab at defining the concept. Al Marri (petitioner at right), however, produced a fractured opinion that did little to clarify the definition. Judge Motz (left) joined by three colleagues relied on Hamdi and law of armed conflict principles to focus on the affiliation factor:

Enemy combatant status rests on an individual’s affiliation during wartime with the ‘military arm of the enemy government’ (p. 230).


According to this definition, al-Marri did not qualify as an enemy combatant because he did not affiliate ‘”with the armed forces of an enemy nation” (p. 230). Motz concluded that an individual may not be classified as an enemy combatant merely for engaging in criminal conduct.

By contrast, Judge Wilkinson (right), concurring in part and dissenting in part, adopted a different definition and reasoned that an enemy combatant is:

1. A member of
2. An organization or nation against whom Congress has declared war or authorized the use of military force, who
3. Knowingly plans or engages in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of an enemy nation or organization (p. 322).

In support of this definition, Wilkinson argued that the conception of “enemy” is no longer based on an individual’s nationality, because stateless actors (e.g., terrorist organizations) now pose the most compelling military threat to the U.S. In his estimation, membership in such an organization is functionally equivalent to traditional criteria of enemy status—an individual’s residency in, or citizenship of, an enemy nation. Indicia of membership may include:

• self-identification with the organization through verbal or written statements;
• participation in the group's hierarchy or command structure; or
• knowingly taking overt steps to aid or participate in the organization's activities.

In Wilkinson's view, these indicia distinguish those who are the enemy from those who merely sympathize with the enemy (p. 323).

The third criterion addresses who constitutes a “combatant,” distinguishing those with military aims from those who do not present a threat to opposing forces. Those who use military-like force against American soldiers or civilians obviously qualify as combatants under this formulation. Similarly, members of an “enemy sleeper terrorist cell” who have taken steps, even if preliminary in nature, toward a destructive act may also be considered combatants. Conversely, members of the enemy organization who do not intend hostile acts (such as an al Qaida physician) are non-combatants and are not subject to military jurisdiction. (More material on al-Marri is available here, the Brennan Center for Justice at NYU Law School.)

7. District Courts

Many district courts hearing habeas petitions in the wake of the Supreme Court’s decision in Boumediene adopted the Wolfowitz definition. On remand in that case, Boumediene v. Bush, 583 F.Supp.2d 133, 135 (D.D.C. Oct. 27, 2008), Judge Leon adopted the CSRT definition. Other courts called for additional briefing on this question. For a discussion of these cases, see here.

Eventually, as IntLawGrrls founder Diane Marie Amann has posted, the Obama administration abandoned the term "enemy combatant," but not the idea that certain individuals may be detained absent proof of the commission of any prosecutable crime. The new operative standard for detention contains a minor change to the standard employed in the CSRTs by raising the threshold of support to “substantial.”

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 brief made clear that this standard will be subject to further refinement:

the contours of the ‘substantial support’ and ‘associated forces’ bases of detention will need to be further developed in their application to concrete facts in individual cases.

Using basic principles of statutory interpretation, the definition at present seems to encompass several distinct categories of individual who did certain things, were members of certain groups, or substantially supported these groups. These are:

1. persons who were involved in (along a spectrum of planning, authorizing, committing, or aiding) the attacks of 9/11;
2. persons who harbored individuals “responsible” for the 9/11 attacks;
3. persons who were part of Taliban or al Qaida forces;
4. persons who were part of associated forces that are engaged in hostilities against the U.S. or its coalition partners;
5. persons who substantially supported Taliban or al Qaida forces;
6. persons who substantially supported associated forces that are engaged in hostilities against the U.S. or its coalition partners;
7. persons who committed a belligerent act in aid of “such enemy forces” (presumably the Taliban, al Qaida or “associated forces”);
8. persons who “directly supported” hostilities in aid of “such enemy forces” (presumably the Taliban, al Qaida or “associated forces”).

It is not entirely clear to what extent the addition of the “substantial” modifier might have generated different outcomes in the habeas cases already decided had the new Obama standard been operative. Certainly cases premised on guest house stays or the provision of non-combat support (such as cooking) might have come out differently. It remains to be seen to what extent the courts are willing to accept this new standard or even whether the Obama administration will continue to advance it in the face of significant criticism that it does not go far enough toward bringing the U.S. detention practice into line with international law.

Closing Guantánamo: Legal and Policy Issues

It was a pleasure to see so many Int’l L Grrls (and their readers) at the American Society of International Law Annual Meeting this weekend. A couple of us will be offering "reports" from the conference. Here, I’ll present a summary of one of the more eagerly awaited panels on “Closing Guantánamo: Legal and Policy Issues" chaired by Bobby Chesney (Wake Forest). The panelists were David Glazier (Loyola of L.A.), Deborah Pearlstein (Princeton), Joanne Mariner (Human Rights Watch), and Glenn Sulmasy (U.S. Coast Guard Academy). A discussion of the crux of the problem of detention in non-international armed conflicts going forward will appear in a subsequent post. (Apologies if I jhave mischaracterized anyone’s position; clarifications welcome).

Chesney introduced the panel by describing the two executive-order task forces currently at work on detainee issues.

• One is reviewing detainee files case-by-case with an eye toward reaching individualized dispositions.
  
• The other will take a longer perspective and attempt to devise a detainee policy for the future.
  

In the meantime, the administration has been forced to take positions (see post here) in habeas cases pending in federal courts (see post here).

Prof. Glazier (right) emphasized that the decision to close GTMO was the easy part; the “how” is where the challenge lies. Glazier identified three potential outcomes:

1. release,
2. prosecute (or transfer for prosecution), or
3. continue to detain.

Of the 240 or so detainees, about 60 men have already been cleared for release. In his estimation, about 80 individuals might still qualify as “high value,” but it is likely that most are minor functionaries along the lines of Salim Hamdan. Federal courts represent the only place to credibly prosecute individuals for whom there is sufficient evidence. Anything short of an Article III process will be perceived as a shortcut. Glazier raised concerns about the transfer paradigm: if the United States can’t fairly prosecute them here (for lack of admissible evidence or viable substantive charges), then it is unlikely other states could either. To transfer detainees for prosecution would put the detainees at risk of further detention without trial or of sham proceedings that might violate international human rights protections.

He acknowledged that some subset of detainees cannot be tried (because any evidence against them was obtained by torture or mistreatment, any crime for which they might be tried was enacted after they acted, or because there is simply no or inadequate evidence available against them) but remain dangerous. For this group, the U.S. should establish a preventive detention regime that is based on the law of war (to which GTMO doesn’t come close to complying). This paradigm must reflect the model of a communal camp setting with access to the outside world, etc.

Deborah Pearlstein (right) emphasized that the problem of what to do with GTMO is to a certain degree sui generis, because our options are informed and limited by what we’ve already done (which includes the commission of acts of torture, incommunicado detention, removal from battlefield, the failure to hold GC III Art. 5 hearings, etc.). For these individuals, there may be no good options available, so we’re left to sort through the “less bad” options. In so doing, we should attempt to do as little violence to international law as possible. This process of resolving GTMO should be cabined off from the larger problem of defining a detention process going forward; we can’t let the hard case of GTMO make permanent bad law or policy for the future.

Taking off on Glazier’s three categories of detainee, Pearlstein noted that the individuals slated for release represent a diplomatic, rather than a legal, problem. Many of these individuals may not be able to be sent home because of widely-shared treaty obligations under the Refugee or Torture Conventions. For those individuals who might have been prosecutable, there were more options available upon capture (courts martial, legitimate and lawful military commissions). Now, we’re left with federal courts as the only legitimate option.

For those who present security risks and might need to be further detained, the law of war may not provide any affirmative authority to detain individuals (either combatants or civilians who directly participated in hostilities) who were captured either in the context of a non-international armed conflict (NIAC) or outside of a conflict situation entirely (such as in Zambia). In addition, the Authorization to Use Military Force (AUMF) may not constitute sufficient domestic authority to detain these individuals. Thus, we would need express domestic authority in the form of new legislation to continue to detain them.

One positive outcome of the recent Obama administration filing beyond the welcome demise of the "enemy combatant" nomenclature is the good faith statement that the Administration intends to be in compliance with IHL. IHL quite clear and detailed on what detention authority exists in IACs. This, however, brings into sharp focus the need to look closely at the nature of the authority to continue to detain GTMO and other detainees given that the law governing NIAC provides no treaty-based authority to detain, on the presumption that domestic claw would provide the necessary authority outside of a state-to-state conflict where international law would be necessary.

Anticipating arguments by Commander Sulmasy, Pearlstein opposed the establishment of any separate national security court on the grounds that such a system won’t solve the GTMO problem and could never be established in time, given the legal challenges that would inevitably follow. She referenced a Human Rights First study demonstrating that the federal courts are sufficiently flexible to handle terrorism cases.

Commander Sulmasy (left) emphasized that even when we resolve the GTMO cases, there are hundreds of detainees at Bagram Air Base whose lawyers are also attempting to get into the U.S. court system. We still have not yet fully resolved the question of whether the situation with Al Qaeda is an armed conflict or a law enforcement problem or some hybrid of the two. The typical Al Qaeda member is part-international criminal, part-warrior.

Although he was thin on details, Commander Sulmasy advocated a hybrid national security court that would combine aspects of the military commission scheme as it was originally conceived (to dispense rapid justice) and Article III courts. (Sulmasy conceded that the military commissions, which should have begun trials in 2003, never achieved their intended purposes and that his support for the existing system eroded over time). This might involve proceedings that would be closed to the public (but not the detainee). This would not constitute preventative detention, as the process would be an adjudicative one rather than an adaptation of the Combatant Status Review tribunal system. Sulmasy questioned the ability of Article III courts to deal with terrorists and unprivileged combatants, noting that many of the terrorism cases reported on to date preceded 9-11.

Joanne Mariner (left) agreed that the immediate decision to close GTMO represented a meaningful break with the most reviled of the many unsavory Bush Administration policies. She was concerned, however, that some of the solutions being put forward are—and will be perceived to be—mere tinkering with the existing machinery. (She specifically noted the Obama Administration’s deliberate use of the term “refining” in its pronouncements). This, she emphasized, will not fool our European allies or the Muslim world for that matter, which may actually be the most important audience to convince that we’re genuinely changing our approach to fighting terrorism. In her estimation, we need the Muslim world’s support to fight terrorism effectively. In this regard, Mariner was disappointed in the most recent filing in the detainee litigation which, while it rejected the rhetoric of the Bush administration and laid to rest the controversial and unsupported term “enemy combatant”, resulted in only a slight modification to the Bush approach to preventative detention in practical effect.

With respect to the detainee categories, those who have been implicated in crimes should be prosecuted. The federal courts have already demonstrated that they are capable of this and may, indeed, have been overly harsh in certain terror cases (e.g., Padilla). The indictment of al Marri was an encouraging sign that President Obama has put some faith in the federal court system to deal with these cases.

Of the persons who cannot be tried and should be released, there is the concern that many of the GTMO conditions will be replicated overseas. Human Rights Watch researchers, for example, interviewed high government officials in Yemen, who implied that the Bush Administration had sought to create a proxy detention regime there with only a thin veneer of rehabilitation. In order to convince our allies in Europe to help us resettle these individuals, we’re going to have to set good faith example and accept some of these individuals into the United States. Immediately resettling the Uighurs, for example, would have jump started resettlement negotiations with Europe.

In terms of the problem of characterizing the current situation, Mariner noted that the Bush Administration capitalized on ambiguity between the formal war in Afghanistan and the so-called “global war on terror.” She noted that although NATO passed a resolution endorsing a military response to 9/11 (one that was focused on Afghanistan just as the AUMF), the UN Resolutions subsequent to the attacks all have Al Qaeda in mind and call for traditional law enforcement responses with no reference to war rhetoric. Indeed, Mariner noted that many of our closest allies have argued that applying a war paradigm to the global terrorism challenge is counter-productive and feeds into perception of the Muslim world that this is a war on Islam.

The rest of the panelists opposed Commander Sulmasy’s proposal for any sort of a national security court. Glazier acknowledged that terrorists have dual characteristics (criminal/warrior), but queried whether we need new law and institutions to bridge this gap. Depending on the circumstances, we can freely choose between existing bodies of law to respond to dangerous individuals, as long as we faithfully adhere to domestic and international legal standards. He is concerned that national security courts will inevitably involve departures from core due process protections that we hold dear out of mere expediency. Otherwise, why would we need them? He is also concerned that if we make arguments about why we need such courts based on the difficulty of invoking standard criminal law processes, it will be too easy to expand this “special” process to other “tough cases,” such as drug smugglers and organized crime members.

On the question of whether we need a more formal preventative detention regime, Pearlstein noted that many human rights organizations do not categorically oppose security detention. (Indeed, it is affirmatively authorized in the 4th Geneva Convention for non-combatants who post security risks). The question remains: is such a system sensible as a matter of US policy and counter-terrorism strategy? This requires a consideration of whom we are talking about preventively detaining. Where people are apprehended engaging in violent acts, they can be prosecuted for such crimes as providing material support for terrorism, even if the acts in question were committed extraterritorially. So, any preventative detention regime would likely be used for mere members of dangerous groups for whom there is insufficient evidence that they actually did anything. Detaining and thus incapacitating a marginally low-level and expendable Al Qaeda member will serve some minor specific deterrent effect. If we detain too many of his brethren, however, it might also risk radicalizing his inevitable replacements. The long-term strategic rationale for such a system is questionable.

Understanding the enemy combatant cases

I've been reading through the habeas corpus case results in Guantánamo litigation in an effort to construct a framework for how the courts (as compared, where possible, to the Combatant Status Review Tribunals or the Administrative Review Boards) are defining enemy combatancy.
By way of background:
In the aftermath of the U.S. Supreme Court’s decision in Rasul v. Bush (2004) (holding that Guantánamo detainees had statutory rights to habeas corpus), lawyers representing Guantánamo detainees filed habeas petitions in the U.S. district courts of the District of Columbia. Ultimately, no action was taken on these petitions, because the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA) purported to strip the federal courts of habeas jurisdiction. (The Supreme Court in Hamdan v. Rumsfeld (2006) declined to apply the DTA retroactively to suspend jurisdiction only over pending habeas petitions; the MCA more explicitly denied habeas jurisdiction in all present and future cases). Once the Supreme Court decided Boumediene v. Bush (2008) (holding that Guantánamo detainees had constitutional rights to habeas corpus that could not be suspended by statute), brought by Lakhdar Boumediene (right) and other detainees, lawyers revived these petitions. So far, the district courts have adjudicated a dozen or so cases. Most decisions, but not all, have resulted in continued detention.

In these proceedings, the courts must determine — by a preponderance of the evidence — whether the continued detention of the individual is lawful. By the time the court decides the issue, it will have seen:
► the detainee's petition;
► the government's factual return (usually in two parts to accommodate classified information); and
► the petitioner's traverse (often in two parts as well).
Discovery is conducted throughout the process, but is often most intense following the revelation of factual return.

The government has generally argued that these individuals are lawfully detained because they constitute “enemy combatants” who can be held pursuant to:
► the Authorization to Use Military Force, a joint resolution that Congress adopted a week to the day after the terrorist attacks of September 11, 2001; and
► the Commander-in-Chief provisions of Article II of the Constitution.
The definition of “enemy combatant” remains the subject of litigation. U.S. District Judge Richard Leon (left), for one, adopted the definition of “enemy combatant” set forth in the order establishing the Combatant Status Review Tribunals. See Boumediene v. Bush, 2008 U.S. Dist. Lexis 87133, at *6 (Oct. 27, 2008). This definition provides:

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.

The elements of this definition are:
► The individual was part of or supporting:
► Either:
► ► the Taliban,
► ► Al Qaeda or
► ► "associated forces" engaged in hostilities against the United States or its coalition partners.
Other judges (e.g., Judges John D. Bates, Thomas Hogan, and Gladys Kessler) have requested briefing on the issue from the parties.

The Obama administration has to date declined to “refine” the definition of enemy combatant, but has urged the courts to not address the question in the abstract before reaching the merits of individual petitions. See Hamlily v. Obama, Civil Action No. 05-763, Government’s Response to the Court’s Order of January 22, 2009 Regarding the Definition of Enemy Combatant at 2. This is a bizarre and untenable position, as any litigator will attest: How does one address the merits without knowing the operative standard? Not surprisingly, the courts have rejected this approach, but have solicitously given the government additional time to review the cases or to file their factual returns. See Hamlily v. Obama, Order (Feb. 11, 2009). Because Judge Leon has an operative definition of “enemy combatant,” his cases have progressed farther than the others. As a result, this survey is not yet representative.

The following factors have been gleaned from the existing case law. It is inherently incomplete in that much of the relevant evidence has been deemed classified and, as such, is only obliquely discussed in the rulings. In these opinions, the courts have considered a number of factors to be relevant to whether the individual constitutes an enemy combatant. At the same time, the courts are looking at the totality of the circumstances, so it is difficult to glean which factors — standing alone — would be sufficient and which are mere makeweight arguments. The key factors are as follows:

► 1. Engaging in combat, or providing support for fighting forces engaged in combat, against the United States after October 2001, when the United States initiated the post-9/11 counter-assault it named Operation Enduring Freedom. Several detainees were with their units at the battle of Tora Bora in December 2001, and so were engaged in combat directly against the United States. Others, however, were billeted elsewhere, but were engaged in combat during this international armed conflict period on behalf of the Taliban or other fighting forces and against the Northern Alliance.

► 2. So far, no cases have been adjudicated involving individuals exclusively engaged in combat prior to either 9/11 or 10/7. Courts have cited as relevant to determining enemy combatancy the fact that an individual "remained with his unit" post 9/11-10/7.

► 3. Unsurprisingly, individuals need not engage in combat per se to be qualified as an enemy combatant. Providing support (such as by being a kitchen aide) for a fighting force during this period has been deemed sufficient.

► 4. Indeed, noncombat “support” in the definition of enemy combatant has been broadly defined. Individuals who have assisted Al Qaeda outside of any situation of armed conflict (e.g., by being a courier outside of Afghanistan) have also been denied habeas relief. Even individuals who appear to have been given support (financial or logistical) by the Taliban or Al Qaeda (e.g., a stay at a guest house) have qualified as enemy combatants, even though there is no public evidence of them having provided support or undertaken any overt act in support of either group.

► 5. Attending a training camp run by either the Taliban or Al Qaeda is enough to establish enemy combatancy. This is true even where individuals never saw combat and, by their testimony, sought training with the intention of doing battle elsewhere.

► 6. The courts also cite mere affiliations with known Al Qaeda members as evidence of enemy combatancy. The government often presents evidence that the individual stayed at an al Qaeda- or Taliban-affiliated guest house where known enemy combatants stayed, for example. There is no case, however, based on such evidence alone.

Several of the cases that have proceeded early are somewhat easier cases, such as the Tora Bora cases. There are other cases in the pipeline whose facts are less clear-cut.
Stay tuned.