By October 24, 2001, They Decided They Could Detain Prisoners as Long as the Afghan War Continued

The reporting on the latest torture documents released in Binyam Mohamed’s suit in the UK is damning enough (Beeb, Guardian). They show the highest levels of the British government–up to and including Tony Blair–were getting warnings that Americans were using torture within six months of 9/11. Yet they placed those warnings aside so they could stand united with the US.

But put some of them in context. As Jason Leopold pointed out, for example, the memo–on which Blair wrote comments indicating his initial skepticism about claims that we were using torture was diminishing–is dated January 20, 2002. That was the same day Jay Bybee signed a memo saying Geneva Convention didn’t apply. And on February 7, 2002, George Bush wrote his memo declaring that al Qaeda was not entitled to treatment under the Geneva Convention. Not only does the timing make it difficult for Blair to claim his concerns were somehow addressed. After all, if your partner responds to your concerns that it is breaking the Geneva Convention by declaring them invalid in this case, it sure seems to confirm your concerns. But the fact that much of the British national security establishment knew we were torturing makes it clear that declaring al Qaeda was not entitled to Geneva Convention treatment was intended to retroactively excuse torture.

But I’m at least as interested in this document (which doesn’t appear to have been released):

Also among the released documents is a letter to London from the British embassy in Washington, dated 24 October, which reflects a growing realisation that the US was considering detaining people captured in Afghanistan for very long periods, and an understanding that it would be difficult to defend this as lawful.

Heavily censored, the letter shows that within weeks of the 9/11 attacks, the US and UK governments saw that the longer they could claim they were still waging a form of war, the longer they might be able to detain individuals without trial. They were aware the argument would wear thin if hostilities should appear to be over.

The author of the letter – whose identity has been redacted – writes: “As long as the war against terrorism in the widest sense continued, the US/UK would have rights to continue to detain those they had been fighting against (even if the fighting in Afghanistan itself were over). [Redacted] conceded that the strength of such a case would depend on the plausibility of the argument that the war was continuing.” [my emphasis]

Almost nine years ago, a British embassy official recorded the consensus among American and British officials that the plausibility that we were still at war would affect whether we could legally hold detainees for long periods without trial.

Nine years later, just a handful of the men ultimately captured have had a trial. Our sole claim to still be at war–aside from the Administration’s attempts to stretch the terms of the AUMF–are the 50 al Qaeda members still in Afghanistan. And on that basis, we still hold hundreds of men without trial.

You see, from the start this war was designed to be our longest war. Because all those Commander-in-Chief powers both Republicans and Democrats have grown to love so much depend on it continuing.

Our men and women are risking their lives in Afghanistan at this point to make indefinite detention more legally “plausible.”

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  1. tjbs says:

    Just hope this CRUSADE doesn’t last as long as the last one.

    We have laws that give more protection and respect (Vick)to dogs than our fellow human beings.

    Good thing 9/11 changed everything even Karma, cause otherwise we’ve purchased some ugly payback.

  2. BoxTurtle says:

    If they’re POW’s, you can hold them until the end of the war. I am unaware of anybody in the Afghan war being given POW status. Certainly, they’re not getting red cross packages.

    If they’re simply criminals, I’m unaware of anybody in the Afghan war being charged by a real court with anything.

    So we come up with the “enemy combatant” label thats a little of both. And not supported in any international law. And they’re losing that fight in court more often than not.

    So now we simply kill without capture. Avoids all the legal hassles.

    Boxturtle ([email protected]: Dogs are more human than Scary Brown Moslems, donchaknow)

    • ondelette says:

      There are two military operations going on in Afghanistan as far as the U.S. is concerned, Operation Enduring Freedom, which is authorized by the AUMF, and the ISAF operation which is a peace operation authorized by Security Council resolution 1386 and its successors. Hence the term “Joint Command”. Only the former has to do with “winning” anything, only the former has the Supreme Court’s blessings on treating prisoners by the minimal common Article 3 standards, and for quite some time now, it has indeed seemed that its sole reason for existence has been to continue to justify indefinite detention and poor treatment of prisoners.

      Whether that’s at all legal in Afghanistan anymore is debatable, since Afghanistan ratified both Additional Protocols in 2009, which means that all combatant prisoners are to be treated like POWs whether they have that status or not (cf., for instance, Article 44, AP1, concerning prisoners for whom their sole reason for not being privileged was not being distinguishable at the time of capture).

      As for how soon the Bush administration intended to mistreat prisoners, Barbara Olshansky documented an emergency military order November 13, 2001 declaring military tribunals for an “extraordinary emergency” and first using the words “enemy combatants” as opposed to any Geneva Conventions terms. She documents that there was a “GST” signed authorizing a change in the rendition procedures in the CIA to create a procedure (extraordinary rendition) to render prisoners to third countries for interrogation “within six days of September 11th” (p. 191). She had that information in 2006 (Olshansky, Democracy Detained).

    • powwow says:

      So we come up with the “enemy combatant” label that’s a little of both. And not supported in any international law. And they’re losing that fight in court more often than not.

      The term “enemy combatant” (or “enemy belligerent”) is not the problem.

      The problem is a dishonorable military chain of command illegitimately declaring (either knowingly, or with reckless disregard for the truth – in the complete absence, until June, 2008, of any sort of meaningful Congressional or judicial check) that non-combatants are “combatants,” in an armed conflict in which we are engaged, without giving them more than a show-trial right to demonstrate otherwise. All because that chain of command, following unlawful orders issued from its civilian head, simply abandoned the mandated (if obviously unenforced, politically or legally) law of war process that requires detainees to be treated as POWs, by default, until allowed to legitimately contest and establish their status as something else in a fair hearing, as the “law of the land” requires. [The recent debate that David Frakt commendably participated in – against two notoriously-duplicitous promoters of an unchecked American presidency – failed to make this fundamental fact clear – even as his opponents continuously cited to previous, honorable practice by our military in other campaigns in which good-faith attempts were made to avoid detaining innocents (good faith effots made easier, of course, by the wearing of uniforms by most of our opponents). The same debaters tried to pretend that a failure to wear uniforms, on its own, is a war crime – which, however, it is not.]

      That “law of the land” originates with the Third Geneva Convention, as ratified by the U.S. Senate, and, specifically, its Article 5 hearings, as implemented by Army Regulation 190-8, which require that all military detainees be given the privileges and rights of POWs (no coercive interrogation, high among those rights) unless and until a neutral, fair tribunal strips them of that protection (down to, for example, the protections of Common Article 3 of the Geneva Conventions instead).

      The “show-trial” right refers to the Lindsey Graham-extolled Combatant Status Review Tribunals (CSRTs) hastily concocted by the DOD in the wake of 2004 Supreme Court rulings that threatened to apply an independent check on the military’s detention practices – CSRTs which were finally themselves subjected to a meaningful judicial check only in late 2007, by military judges. So far that check is only being applied on a case-by-case basis to the tiny minority of detainees being slowly brought up on war crime charges before a Guantanamo Military Commission – the second defendant given that right will be Noor Mohammed, whose Article 5 hearing conducted by a Commission judge will finally get under way, eight years after he was unlawfully stripped of POW protections, in November:

      The next step in this case will be a jurisdictional [Article 5-compliant] hearing, scheduled to begin November 9. The government will provide a truncated version of their entire case against Noor. The judge will be asked to decide whether Noor is, in fact, an alien unprivileged [non-POW] enemy belligerent. This is a key hearing. The judge’s determination will be made under a preponderance-of-the-evidence standard, instead of the more familiar and much more rigorous beyond-a-reasonable-doubt standard. But without such a finding, the commission will not have jurisdiction to try Noor [because he would qualify – as he should have from day one, absent this Article 5 hearing – as a privileged enemy belligerent (a POW), triable for violations of the law of war only in a UCMJ-governed military court-martial -pow wow].

      – NIMJ volunteer attorney Allen Dickerson, 9/22/2010

      Repeating, with some updates, an informal summary of the history of Guantanamo detentions that I wrote in July, which backs up emptywheel’s spot-on “Because all those Commander-in-Chief powers both Republicans and Democrats have grown to love so much depend on [the 2001 AUMF-unleashed armed conflict] continuing”:

      Guantanamo once held almost 800 prisoners, all unilaterally deemed (in violation of the Third Geneva Convention, Article 5, and Army Regulation 190-8 implementing same) to be non-POW combatants in an armed conflict with the United States, and thus detainable for the duration of hostilities.

      About two dozen of those detainees were also speciously charged with violating the law of war, and thus claimed to be subject to prosecution under one form or another of military commission – a Commission system operated by the Executive Branch that’s off-limits for prosecution of Prisoners of War and American citizens deemed to have violated the law of war [the latter two categories of offenders are prosecuted in our tested, traditional military justice system, via regularly-constituted court martial].

      A grand total of four of those military commission prosecutions have resulted in a verdict (two of the four by plea bargain). The two non-plea bargain verdicts are under appeal. Oral argument in the appeals was held in January and very-consequential decisions on the appeals, from the newly-minted (Military Commissions Act-created) Court of Military Commission Review (which has almost no other case load), are overdue. [Note: The Court of Military Commission Review (CMCR) is now down to five members, all military officers. In January, two different CMCR panels of three members each heard the oral arguments in the two Commission convictions under appeal. To date, neither panel has rendered a decision, even as members of the panels retire, or are rotated off the Court (apparently leading to one of the panels – Hamdan’s – being suddenly replaced by the en banc Court, as emptywheel noted here just before the Labor Day weekend). And now an important challenge of the (command influence-related) lawful service on the CMCR of two of the five remaining military Court members has been launched by defense counsel – a response from the Court to that challenge is now pending.]

      Before President Obama even took office, more than 500 of those 800 “enemy combatant” detainees had been released by the military from detention, without court order, before the cessation of hostilities in which those detainees had been asserted from day one to be “combatants.” Those hundreds are not counted in the ‘win/loss’ ratio of the ongoing habeas corpus proceedings in federal court.

      In short, it’s not just the 55 habeas cases belatedly decided by federal judges which are clocking in at a 75% “loss” ratio for the government. Rather, the government’s own actions indicate that out of the 800 or so foreign citizens ever detained at Guantanamo, 75% (or more) should almost certainly have been released within weeks of their capture/arrest by American agents in Afghanistan/Pakistan and subsequent transfer to American military custody.

      [Anyone who’d like to read a more formal, detailed version of that general summary can find mine here.]

  3. 1der says:

    How the Pentagon has seen it, from the mouth of Supreme Commander Petraeus: (Woodward’s latest book)

    During a flight in May, after a glass of wine, Petraeus told his own staffers that the administration was “[expletive] with the wrong guy.”

    Woodward quotes Petraeus as saying, “You have to recognize also that I don’t think you win this war. I think you keep fighting. It’s a little bit like Iraq, actually. . . . Yes, there has been enormous progress in Iraq. But there are still horrific attacks in Iraq, and you have to stay vigilant. You have to stay after it. This is the kind of fight we’re in for the rest of our lives and probably our kids’ lives.” http://firedoglake.com/2010/09/22/president-obama-needs-to-fire-david-petraeus/

  4. klynn says:

    Our men and women are risking their lives in Afghanistan at this point to make indefinite detention more legally “plausible.”

    It appears, somehow, in the chain of command “our men and women risking their lives,” are seen not as “lives being risked” but as military inventory.

    Otherwise, “legally plausible” would have been addressed “legally” a long time ago.

  5. bobschacht says:

    I think that any kind of AUMF or declaration of war should have an automatic sunset provision. I know, I know, it won’t happen, but this eternal war business is really destructive (on many levels, in many ways).

    Bob in AZ

  6. mattcarmody says:

    I need to retrieve data from an old hard drive in the basement on a laptop that I used in 2001, but I remember that around that time Ashcroft or someone from Justice went over to Britain to research their application of the state secrets act. Someone also made a trip to Israel and members of the IDF came to Ft. Benning to teach interrogation techniques that they employed against Palestinians to members of our armed forces.

    This whole eternal war/police state apparatus was envisioned as soon as Bush took the oath. In Frum’s book “The Right Man” he has Bush, in a February 2001 interview, talking about regime change in Iraq as one of his top ten things to do. April 2001 saw the incident with the Navy jet forced down by the Chinese with the networks and cable media whores getting their military commentators in place.

    • brendanx says:

      envisioned as soon as Bush took the oath.

      The policy of “regime change” was implemented under Clinton. At that time it meant bombing, systematic destruction of Iraqi infrastructure, blockade, and was the necessary precursor for the real “regime change” of invading.

      • mattcarmody says:

        I’m not above blaming Bubba for anything. As far as I’m concerned he was responsible for war crimes in eastern Europe by allowing the use of depleted uranium munitions against the Serbs in former Yugoslavia. He also contributed to the war crimes committed by Bush the First during Desert Storm by enforcing the sanctions that killed 500,000 Iraqis, and by bombing the shit out of the country.

        My point was that throughout the time period after the lies that got us into Iraq were exposed everyone was saying that at no time was Bush thinking of regime change from day one. All the while, Frum, Mr. Axis of Evil, knew that 7 months prior to 9/11 the Bush administration was intent on getting rid of Saddam, something Frum revealed to the world in his book in January 2005.

  7. scribe says:

    from the one-pager with Tony Blair’s handwriting on it:

    “They will be interviewing detainees in accordance with the agreement reached with the Americans.”

    That’s the kind of agreement reduced to writing, so as to not let open to intepretation what that agreement might be. We all would love to read that.

    Also, the 24 October letter with redactions, re keeping the war going, in which you are so interested, was from the British Embassy in DC back to the “home office” in London. So, I’d not expect to see it too soon. It’s their own internal diplomatic cable, in so many words. (Unless, of course, wikileaks has it somehow….)

    This quote from the British Army lawyer:

    From my visit to Bagram 10/11 Jan and watching the reception of the 80 plus prisoners, it would seem that this detainee issue is one that has the potential to reflect badly on the US/Coalition … the US treatment of the prisoners could be judged to be [redacted]”.

    is spot on and correct on the law. I am quite sure the one word redacted in that quote is “torture”. It fits, both contextually and typesetting-wise.

    Continuing, Geneva makes no exceptions for logistical difficulty (and, IIRC, expressly so states there are no exceptions). In fact, Geneva would require relase of the captives if logistics precluded treating them properly.

  8. brendanx says:

    Our men and women are risking their lives in Afghanistan at this point to make indefinite detention more legally “plausible.”

    I’m as baffled as anyone by our presence in Afghanistan and Pakistan, so this seems as plausible as anything else, so how tongue-in-cheek is this?

    • emptywheel says:

      Not really tongue in cheek at all. As much as Woodward says Obama wants to witdraw, Obama is already working hard to stretch the terms of the AUMF beyond recognition.

      But until they’re more confident that they’ve succeeded in stretching it (the al-Awlaki filing betrays their utter lack of confidence in it, IMO), then they need to remain in Afghanistan.

      Mind you, they also like having their “war against 50 men in Afghanistan” because it allows them to avoid declaring war on Pakistan, which would not go over very well.

      And I suspect they’re utterly confident they could get a new AUMF, but won’t try bc it’ll lose them a lot of credibility in the international community.

      That said, AUMFs are overrated. We’re largely doing the same things in Colombia (and in doing so, picking one set of terrorists and their supporters over another), and the only thing we have there is an agreement Colombia’s President has unilaterally, and illegally, signed.

  9. tammanytiger says:

    A passage from George Orwell’s 1984 comes to mind: “the endless purges, arrests, tortures, imprisonments and vaporizations are not inflicted as punishments for crimes which have actually been committed, but are merely the wiping-out of persons who might perhaps commit a crime at some time in the future.”

  10. Mary says:

    They could make war a chronic condition of the country, and the slavery of the people perpetual.

    They [the Executive branch] must answer the question by saying that military jurisdiction comes from the mere existence of war … The Constitution is repealed, or its operation suspended in one state because there is war in another. The courts are open, the organization of society is intact, the judges are on the bench, and their process is not impeded; but their jurisdiction is gone. Why? For no reason, if not because war exists, and the silent, legal, technical operation of that fact is to deprive all American citizens of their right to a fair trial.

    That class of jurists and statesmen who hold that the trial by jury is lost to the citizen during the existence of war, must carry out their doctrine theoretically and practically to its ultimate consequences. The right of trial by jury being gone, all other rights are gong with it; therefore a man may be arrested without an accusation and kept in prison during the pleasure of his captors; his papers may be searched without a warrant; his property may be confiscated behind his back, and he has no earthly means of redress. Nay, an attempt to get a just remedy is construed as a new crime. He dare not even complain, for the right of free speech is gone with the rest of his rights. If you sanction that doctrine, what is to be the consequence? I do not speak of what is past and gone; but in case of a future war what results will follow from your decision indorsing the Attorney-General’s views? They are very obvious. At the instant when the war begins, our whole system of legal government will tumble [71 U.S. 2, 79] into ruin, and if we are left in the enjoyment of any privileges at all we will owe it not to the Constitution and laws, but to the mercy or policy of those persons who may then happen to control the organized physical force of the country.

    This puts us in a most precarious condition; we must have war often, do what we may to avoid it. The President or the Congress can provoke it, and they can keep it going even after the actual conflict of arms is over. They could make war a chronic condition of the country, and the slavery of the people perpetual. Nay, we are at the mercy of any foreign potentate who may envy us the possession of those liberties which we boast of so much; he can shatter our Constitution without striking a single blow or bringing a gun to bear upon us. A simple declaration of hostilities is more terrible to us than an army with banners.

    Ex parte Milligan.

    A different judiciary, a different nation, but the same dilemas.

  11. Jeff Kaye says:

    Anyone notice that David Cole has bought into the “long war” argument and is supporting the idea of indefinite detentions, based on the AUMF? He says as much in the current New York Review of Books. (I’m writing up an article on this.) (Bold emphasis added — read carefully, because as Cole seems to be highly critical of the kinds of information put forward to hold these men, he still argues it is appropriate.)

    But the categories of those who can be criminally tried and those who should be released are not exhaustive. There are likely to be prisoners who cannot be tried but may nonetheless be lawfully detained. Parties to armed conflict routinely capture and detain the enemy, and the law of war has long recognized that such detentions may last as long as the conflict does. Defining “the enemy” and the duration of the conflict are more difficult in a struggle with guerrilla forces that are fighting outside the authority of any state; but that hardly means that the US must forgo the tactic of detaining the enemy. Thus, even if all the abuse that has poisoned Guantánamo were acknowledged and rectified, some men would remain appropriately detained without trial—as prisoners of war in the ongoing armed conflict with al-Qaeda and the Taliban in Afghanistan.

    That is the position reflected in the Final Report of President Obama’s Guantánamo Review Task Force, completed in January 2010 but not publicly released until May 28, 2010…. It concluded that 126 could be transferred to countries outside the United States, that forty-four could potentially be prosecuted, that forty-eight should be detained without trial, and that thirty detainees from Yemen should be detained “conditionally,” subject to improvements in that country’s security.

    The most controversial category comprises those who are to be detained without trial. The task force recommended such detention only where (1) individuals could be lawfully detained under the Authorization to Use Military Force passed by Congress after September 11—in the administration’s view, those who are or were part of, or substantially supported, al-Qaeda, the Taliban, or associated forces with which the US is fighting; (2) the threat they posed could not be mitigated sufficiently except through continued detention; and (3) prosecution is infeasible.

    As a general standard, this is largely unobjectionable, although much depends on how expansively the administration interprets “substantial support” and “associated forces.”

    I’d like to know where Cole finds the government will hold these prisoners as “prisoners of war.” There’s nothing like that in the TF report, and Cole must know that. He also knows that POW means a certain kind of status, a status the prisoners at Guantanamo do not have. He is also equating the AUMF with a declaration of war, which I am not sure is legally true. Here’s a link to the Guantanamo TF Final Report.

    Here’s what ACLU said about this issue when it arose last January, when the report’s recommendations were leaked:

    “There is no statutory regime in America that allows us to hold people without charge or trial indefinitely,” said Anthony D. Romero, executive director of the American Civil Liberties Union.

    Et tu, David?

    • powwow says:

      Jeff – I think you may be reading too much into David’s explanation (which I read in its entirety, and thought a very helpful overview of the situation for a general audience).

      As in discussions by just about everyone else on the subject, it seems (including David Frakt in the debate I referenced above, though Frakt, as I hoped and expected he would, tried to clarify that issue after the debate), the crucial role of Article 5 process and hearings, or detainee screenings, gets overlooked, or left unexplained, in Cole’s account – allowing you perhaps to assume that he’s saying more than I think he is.

      When it comes to any legitimately-classified Prisoners of War in a Congressionally-authorized armed conflict against actual armed opponents, I absolutely agree with David Cole that such captured enemy combatants may indeed be (humanely) kept off the battlefield for the duration of hostilities, under the law of war. And I don’t question that at least for some period of time, the 2001 AUMF (focusing on the targets it identified) governed an actual armed conflict in which the violent force used by our military in Afghanistan was employed – thus creating the opportunity for genuine POWs to be captured and held by the U.S. military, though none actually were so identified by the U.S. military (for reasons my comment @ 14 elaborates). [Though, perhaps unlike David Cole, I doubt there would be more than a mere handful of such legitimate detainees found among the remaining Guantanamo captives in the end, if fairly screened, even setting aside the questions about the current status of the “hostilities” – the active armed conflict – authorized by the 2001 AUMF.]

      Of late, of course, thanks largely to some atrocious (if still mostly overlooked, as to their significance should they remain intact) judicial decisions handed down this year by D.C. Circuit appellate panels in the habeas litigation, the legal boundaries of the AUMF and the definition of our opposing “enemy combatants” are becoming so ridiculously stretched as to very much match what emptywheel is describing in this post. Aided and abetted, of course, by a Congress that refuses to revisit its 2001 AUMF.

      As I recently quoted Judge Reggie Walton (who had helped set a coherent, carefully-researched detention standard last year, under the law of war, for who may be lawfully detained during this armed conflict – a standard now being dangerously erased by the D.C. Circuit) in his denial of the habeas corpus petition of Sulayman:

      Thus, under the law of this [D.C.] circuit, the government may establish the lawfulness of the petitioner’s detention by showing that he “engaged in hostilities … against the United States,” that he “purposefully and materially supported hostilities against the United States or its coalition partners,” or that he “is part of the Taliban, al Qaeda, or associated forces.” AI-Bihani, 590 F.3d at 871. And, the determination of whether an individual is “part of’ the Taliban, al Qaeda, or associated forces is one that “must be made on a case-by-case basis by using a functional rather than a formal approach.” Bensayah, _ F3d at _2010 WL 2640626, at *5. […] But, the government must do more than just prove that the detainee was an “independent … freelancer.” Bensayah, _ F3d at _,2010 WL 2640626 at *5.

      Judge Reggie Walton, July 20, 2010

      The D.C. Circuit (a collection of two and three-member panel majorities, at least) has thus, as of 2010, declared our armed conflict opponent(s), as authorized by Congress in the 2001 AUMF (and no matter any requirements of the law of war…), to be anyone deemed a mere “part of the Taliban, al Qaeda, or associated forces. Never mind any actual involvement in the events of 9/11, in whose name, and against whose perpetrators, the 2001 AUMF and its armed conflict are nominally directed. All while, it goes without saying, Congress openly yawns.

      If I may, I suggest that David Cole is not the one who deserves criticism for this state of affairs, where, as here, he made a commendable effort to try to illuminate for the reading public the larger Guantanamo picture that most of the rest of the media won’t touch.

      [Anthony Romero’s quote is evidently referencing domestic law, in the absence of an armed conflict (or actual armed-conflict combatants, fairly screened) and thus the law of war (governing wartime detentions) which governs when an armed conflict is the legitimate reason for the detention.]

      • Jeff Kaye says:

        What I am criticizing Prof. Cole for is his support for the conclusions of the Guantanamo TF Final Report, and in particular his defense of using indefinite detentions of some of these prisoners. Yes, I noticed the lack of an explanation regarding Article 5 hearings in Cole’s article. Is this the reason that he imagines that some or all of those indefinitely detained would be “prisoners of war”? Who has been categorized as such thus far?

        In fact, have I missed something or are any of the Taliban or Al Qaeda prisoners captured by the U.S. today accorded POW status and given Article 5 hearings according to the “law of war”? Has the Obama administration rescinded the presidential findings from the Bush administration by Gonzales and Bybee and Yoo that put the Taliban and Al Qaeda prisoners outside Geneva protections? (The Executive Order of Jan. 2009 does grant the Guantanamo prisoners Common Article 3 rights, and recognizes the right to petition for habeas, but doesn’t say that other Geneva protections are in place.) Has not the Obama administration argued and won the right to keep prisoners in the “war on terror” who are transferred to Bagram held indefinitely with no judicial review (the safeguard which Cole cites as protecting executive overreach on dententions)? But Cole doesn’t mention this, keeping his article strictly limited to Guantanamo, which can’t really be isolated from the totality of the U.S. detention policy.

        I am seeking further outside legal comment on Cole’s article, and welcome your response, powwow, and that of others. I will try and seek further clarification from Prof. Cole himself. Lacking the discussion of holding these men as prisoners of war, which is NOT in the Task Force report, and is not called out by Cole as such, I don’t understand why Cole can give it critical support. See discussion by Andy Worthington here.

        I’d note that all this comes in the context of these new UK docs, which show that indefinite detention of prisoners was something planned prior to the supposed military necessity of such was even clear, and to make “plausible” a state of “war” beyond the secession of hostilities. And then, what if the occupation of a country and the attempt to install a puppet government means that fighting continues against an insurgency that opposes such occupation?

        The problem is with the AUMF, which should be rescinded. Here we are nine years later and still arguing over the fate of these prisoners? As Andy says:

        The imprisonment of men detained under the AUMF was approved by the Supreme Court in 2004, in Hamdi v. Rumsfeld, in which it was asserted that “Congress has clearly and unmistakably authorized detention” of individuals covered by the AUMF, and it is this combination of factors that is used by Obama, as it was by Bush, to justify the imprisonment of the Guantánamo prisoners.

        However, as the habeas cases have shown — and the Task Force’s problems reinforce — all that has been created for the majority of the men held in Guantánamo is an alternative to the Geneva Conventions (which, crucially, authorize detention until the end of hostilities), that draws everyone involved in it into legal knots, and, moreover, only provides ammunition to those who maintain that Guantánamo is full of terrorists, when the truth, plainly, is that it contains only a small proportion of terrorists, and a much larger number of soldiers.

        Cole nicely points out the lack of evidence against these men, but still argues that ongoing hostilities justifies their detention. I just don’t see it.

        • powwow says:

          I will try and seek further clarification from Prof. Cole himself.

          Great, Jeff. That’s the right approach, I think, and should advance everyone’s understanding.

          To quickly respond to some of your important questions:

          Yes, I noticed the lack of an explanation regarding Article 5 hearings in Cole’s article. Is this the reason that he imagines that some or all of those indefinitely detained would be “prisoners of war”? Who has been categorized as such thus far?

          No one at Guantanamo has been categorized as a POW so far.

          One detainee (Salim Hamdan) was provided with an Article 5 hearing (conducted by his Commission judge) in late 2007, following which the military judge declared him not to be a POW and thus eligible for trial by military commission, which thereafter tried and convicted him. As I noted @ 14, Noor Mohammed is the second detainee (also charged with war crimes) who is about to get an Article 5 hearing to establish whether or not he is a POW. [To the best of my knowledge, though requested by defense counsel, the military judge in the Omar Khadr Commission has not granted Khadr an Article 5 hearing in advance of his Commission trial.]

          I can’t say for sure where Cole gets his impression that some at Guantanamo would be legitimate POW detainees – he may have been making more of a general statement about the law of war, without focusing very closely on individual cases. I hope he clarifies that for you.

          In fact, have I missed something or are any of the Taliban or Al Qaeda prisoners captured by the U.S. today accorded POW status and given Article 5 hearings according to the “law of war”? Has the Obama administration rescinded the presidential findings from the Bush administration by Gonzales and Bybee and Yoo that put the Taliban and Al Qaeda prisoners outside Geneva protections?

          If Obama has rescinded those findings (thereby exposing a lot of U.S. personnel to obvious war crime charges), I haven’t heard about it… Likewise, not having heard anything to the contrary, I seriously doubt that any of the (alleged) Taliban or Al Qaeda fighters being captured abroad during this administration are yet being given their POW/Article 5 rights by the U.S. military or CIA… That January, 2009 Executive Order would only have been repeating what the Bush administration was (nominally) forced to accept about the application of Common Article 3, after the Supreme Court ruled it applied at Guantanamo, via Hamdan in late June that year.

          The problem is with the AUMF, which should be rescinded. Here we are nine years later and still arguing over the fate of these prisoners?

          For damn sure – no argument from me there.

          Has not the Obama administration argued and won the right to keep prisoners in the “war on terror” who are transferred to Bagram held indefinitely with no judicial review (the safeguard which Cole cites as protecting executive overreach on detentions)?

          Yes – that was the result of one of the recent “atrocious” D.C. Circuit panel decisions, which overturned the finding of Judge John Bates to the contrary.

          But Cole doesn’t mention this, keeping his article strictly limited to Guantanamo, which can’t really be isolated from the totality of the U.S. detention policy.

          Well – pity him a little. Cole already had his hands full trying to clearly explain a complex subject whose details most of the public is unfamiliar with. Bagram is obviously a whole ‘nother ball of wax, as I think he’d agree, and difficult to accurately address in the same word-limited article – which was formally a book review, I believe, about two books which presumably didn’t focus on Bagram.

          Cole nicely points out the lack of evidence against these men, but still argues that ongoing hostilities justifies their detention. I just don’t see it.

          I hope you can explore that with Cole a bit. Do you mean that you doubt that any remaining prisoners were genuine combatants? Or that the AUMF has ceased to apply, because the authorized armed conflict is no more? Or that the AUMF and the law of war never did authorize POW detention (of genuine enemy combatants) for the duration of our armed conflict?

          And then, what if the occupation of a country and the attempt to install a puppet government means that fighting continues against an insurgency that opposes such occupation?

          What if, indeed. Wouldn’t it be nice to have a Congress and/or a judiciary prepared to do their duty by answering that question?

          • powwow says:

            That January, 2009 Executive Order would only have been repeating what the Bush administration was (nominally) forced to accept about the application of Common Article 3, after the Supreme Court ruled it applied at Guantanamo, via Hamdan in late June that year.

            Meaning 2006, that is. Hamdan led to an evident panic in the Executive Branch about their exposure to war crime charges, from which they tried to extricate themselves ASAP, via ‘friendly’ provisions of the Military Commissions Act, which was passed by the Congress in late September, only three months (one of which was the August Congressional recess) after Hamdan was decided (and just before the Congress adjourned to campaign for the November elections in which the Democrats regained the Congressional majority).

            I’ve been neglecting to include links for Judge Walton’s Sulayman habeas denial. His redacted opinion in Sulayman is here (I believe this is Judge Walton’s first opinion on the merits in a habeas case).

            Last year, Judge Walton wrote the most comprehensive, well researched opinion I’ve seen about the parameters of the President’s AUMF-triggered detention authority, in Gherebi (a pre-merits decision), which is available here (emphasis added):

            Remarkably, despite the years that have passed since these habeas corpus petitions were filed, the state of the law regarding the scope of the President’s authority to detain the petitioners remains unsettled. Bereft of any definitive guidance from the Supreme Court or the Court of Appeals for this Circuit on this point of law, the Court must attempt to ascertain for itself whether the President has the authority to detain individuals as part of its ongoing military campaign against the terrorist organization known as al-Qaeda and, if so, what is the scope of that authority. This memorandum opinion represents the Court’s attempt to answer those threshold legal questions.

            […]

            With that understanding, the Court concludes as a matter of law that, in 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.

            SO ORDERED this 22nd day of April, 2009.
            REGGIE B. WALTON
            United States District Judge

            Comparing Walton’s thinking in that opinion about the controlling law, with his thinking a little over a year later in his Sulayman merits decision, would help highlight the impact that the D.C. Circuit decisions have had in the intervening year.

            Shortly after Gherebi was issued last year, Judge John Bates in Hamlily (another pre-merits decision) largely adopted Walton’s approach, with some revisions (emphasis added):

            Detention based on substantial or direct support of the Taliban, al Qaeda or associated forces, without more, is simply not warranted by domestic law or the law of war.

            […]

            After repeated attempts by the Court to elicit a more definitive justification for the “substantial support” concept in the law of war, it became clear that the government has none. Nevertheless, the government asserted that “substantial support” is intended to cover those individuals “who are not technically part of al-Qaeda,” but who have some meaningful connection to the organization by, for example, providing financing. Tr. at 16, 32. Regardless of the reasonableness of this approach from a policy perspective, a detention authority that sweeps so broadly is simply beyond what the law of war will support.

            […]

            The law of war permits detention of individuals who were “part of” one of the organizations targeted by the AUMF. That is the outer limit of the Executive’s detention authority as stated in the AUMF and consistent with the law of war.

            Detaining an individual who “substantially supports” such an organization, but is not part of it, is simply not authorized by the AUMF itself or by the law of war. Hence, the government’s reliance on “substantial support” as a basis for detention independent of membership in the Taliban, al Qaeda or an associated force is rejected.

            This represents a difference between this Court’s approach and that of Judge Walton in Gherebi. But as applied in specific cases, the difference should not be great. Despite the Court’s rejection of “substantial support” as an independent basis for detention, the concept may play a role under the functional test used to determine who is a “part of” a covered organization.

            […]

            For essentially the same reasons, the Court also finds that the government’s detention authority does not extend to those individuals who have only “directly supported hostilities.” Although this language received considerably less attention in the briefing and at argument, it suffers from the same deficiency already identified — detaining an individual solely on the basis that he “directly supported hostilities” is inconsistent with the law of war.

            […]

            As the Court has noted above, see n.14 supra, the precise scope of the phrase “direct participation in hostilities” remains unsettled and the International Committee of the Red Cross is coordinating an effort among experts “to clarify the precise meaning of the notion of ‘direct participation in hostilities’, which has never been defined in treaty law.”

            […]

            In those instances where the government’s framework has exceeded that which is permitted by the law of war — specifically with respect to the concept of “support” — the Court rejects such bases for detention.

            Judge John Bates, May 19, 2009

            Most of the district judges in the D.C. District deciding habeas cases since, have basically followed their colleagues’ script, giving both opinions high praise, until the D.C. Circuit started getting seriously involved this year. [Last year the Circuit was busy trying to establish that federal judges could only urge the Executive to release an unlawfully detained Guantanamo prisoner, instead of forcing their release, in response to a successful habeas corpus petition.]

            Here’s a helpful overview of this subject, from last October, published by the Brennan Center for Justice:

            Soon after the United States launched its “war on terror” by attacking the Taliban regime of Afghanistan, U.S. courts were asked to consider who could be detained as part of this conflict. The Supreme Court partially resolved the question in 2004 in Hamdi v. Rumsfeld, holding that the government could detain individuals, including US citizens, who were part of or supporting Taliban forces and engaged in armed conflict against the US.[1] It sidestepped the broader question of the outer bounds of the category of people who could be detained as an “enemy combatant,” leaving it to the lower courts to define.

            […]

            Also, the ICRC has emphasized that only the armed forces of a non-State party – and not the political and administrative apparatus of the non-State party – are subject to military action.[27] This distinction would be undermined if “substantial support” of al-Qaeda or the Taliban was considered as sufficient to allow detention under the AUMF.

            […]

            The recognition of “organized armed groups” as permissible objects of hostilities in non-international armed conflicts by both the ICRC and U.S. courts is an important step forward in the clarification of the law.

            […]

            Although the Gherebi and Hamlily courts provided convincing arguments for the proposition that the Geneva Conventions did not authorize detention in any type of conflict but that detention was simply a normal incident of inter-State conflict, they did not fully address whether detention in a non-international armed conflict was authorized as an incident of war rather than under domestic law (for example, by examining state practice). Such analysis would seem to be required by the Supreme Court’s decision in Hamdi, which interpreted the authorization to use force to encompass detention authority based on “longstanding law-of-war principles.”[28] The Hamdi Court explicitly cautioned that “if the practical circumstances of a given conflict are entirely unlike those that informed the development of the law of war that understanding may unravel.”[29] The non-international aspects of the “war on terror” undoubtedly present practical circumstances that are very different from the context in which the laws of war evolved. In particular, the geographical and temporal boundaries of the conflict are so much more malleable than those of all previous wars that there is ample room for appellate courts to come to a different view than that taken thus far in the Guantánamo cases.

            […]

            More importantly, the ICRC’s “continuous combat function” model was developed for purposes of distinguishing who is a combatant in the conduct of hostilities, and perhaps membership in an organized armed group would be construed more widely in the context of detention. At the same time, U.S. courts have consistently relied on Geneva Convention principles of distinction – which apply to targeting – for understanding who can be detained in the “war on terror,” and have been respectful of the ICRC’s views on this question. This suggests that, at the very least, the ICRC Guidance should inform the analysis of detention authority in future decisions.

            By Faiza Patel, 10/2009

  12. lysias says:

    Mazar-i-Sharif fell to the Northern Alliance on Nov. 9-10, 2001. What was going on in Afghanistan on Oct. 24? Wouldn’t that have been around the time that the CIA force led by Gary Berntsen entered Afghanistan?

    • Jeff Kaye says:

      October 7, 2001, military operations and bombardment representing “Operation Enduring Freedom” had begun.

      To powwow, passim, much thanks for your contributions, which are very helpful and clarifying. You quote:

      Remarkably, despite the years that have passed since these habeas corpus petitions were filed, the state of the law regarding the scope of the President’s authority to detain the petitioners remains unsettled.

      This certainly still seems the case, and the courts, as you point out, have tried to fill that gap (with contradictory results, it seems, still unsettled). It is precisely that uncertainty (which Cole notes, but saying that much depends on the Executive‘s determination: “although much depends on how expansively the administration interprets “substantial support” and “associated forces.””

      In any case, my overriding objection to all this mess is embedded in the Brennan Center’s discussion:

      The non-international aspects of the “war on terror” undoubtedly present practical circumstances that are very different from the context in which the laws of war evolved. In particular, the geographical and temporal boundaries of the conflict are so much more malleable than those of all previous wars that there is ample room for appellate courts to come to a different view than that taken thus far in the Guantánamo cases.

      Even though the differences between normal conflicts/wars and the “war on terror” are so manifest, the Brennan document still treats the “war on terror” as if it were yet another sub-species of the parent species, War. However, I would argue these are not wars at all, but Empire-sustaining actions, or police actions by the reigning power. This is why the homes broken into by the FBI and the man seized at JFK airport and rendered to Syria, or the prisoners caught in a round-up in an Afghan village, are all subject to the “war on terror”, i.e., to police actions aimed against recalcitrant subjects of domestic or foreign origin. Seen as war, it is indeed limitless and unending, as there is no end to the threats to empire, and the outcast and powerless will keep turning to “terrorism” as a means to rebel or as acts of despair against perceived tyranny. As the Hamdi court put it, “if the practical circumstances of a given conflict are entirely unlike those that informed the development of the law of war [their] understanding may unravel.”

      I’d say things are quite unraveled at this point.

      As Andy Worthington has pointed out, most of the detainees even slated for indefinite detention are basically foot-soldiers, if that, of the Taliban. The TF themselves said they could not be tried for “material support” to terrorism because the law did not exist at the time of their capture.

      • b2020 says:

        “War On Terror” is even less than a police action – it is a marketing catch-phrase plastered on a pile-up of half-baked policies that all have on thing in common – facilitating the privatization of government tax revenue, preferably through unassailable “security” efforts.

        “War On Drugs”

        Not good enough: Try “War On Poverty”

        If Obama wasn’t at war already, he’d have to rename “Change The Equation” into something like “War On Ignorance”. No, it’s only about STEM, not about an enlightened citizenry. “War On Unemployment”? Or “War On Incompetence?”

      • lysias says:

        What began on Oct. 7, 2001 was our air war against the Taliban. That wouldn’t have resulted in the capture of prisoners for whom the question would arise whether or not they enjoyed Geneva Convention protections.

        I suspect this question arose when it became a more serious possibility that the CIA, together with the Northern Alliance, might start capturing people on the ground.

  13. b2020 says:

    ‘Our men and women are risking their lives in Afghanistan at this point to make indefinite detention more legally “plausible.”’

    Very good find and observation! But: Support The Troops! Our executive depends on it. And let’s not forget “enhanced interrogation” and “state secrets” – indeed the whole edifice of the cover-up anhd continued breach of law and constitution – hinges on this “war”.

    It reminds me of John Stewart’s shell game (4:00 in):

    http://www.thedailyshow.com/watch/tue-june-15-2010/respect-my-authoritah

    “I’m covering your prisoner with this war…. moving him around… putting it under this other war…hehehe”

    Anybody noticed that The Onion is completely useless these days? They had Bush – “our long national nightmare of preace and propesrity is finally over” – down to a decimal, but Bygones Habeas Obama gets nothing but low-key support from them.

  14. powwow says:

    Here are two more perspectives on the interpretation/application of the detention authority inherent in the 2001 AUMF, to help bring the current, “unraveling” legal reach of that authority, as it pertains to the detention of foreign citizens at Guantanamo Bay, into sharper focus.

    First, the operative language of the September 18, 2001 AUMF itself, as passed by Congress:

    Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

    SECTION 1. SHORT TITLE.

    This joint resolution may be cited as the `Authorization for Use of Military Force’.

    SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

    (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

    (b) War Powers Resolution Requirements-

    (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

    (2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

    At the beginning of the Obama administration, in response to a request from federal district Judge John Bates asking for clarification of the new Executive’s formal position on the detention powers granted to it (or invoked under the law of war) by Congress via the 2001 AUMF, and/or on any plenary Constitutional powers of detention inherent in the Executive Branch, the Obama administration made this formal statement of the armed conflict-related detention authority that the Executive Branch today claims (pursuant only to the 2001 AUMF, and the attendant law of war, and thus declining to recognize earlier Executive claims of unilateral Article II detention authority):

    The Government’s proposed definition for its detention authority is found in the Memorandum that it submitted in this case on March 13, 2009. According to the Government,

    [t]he 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.

    [From Footnote 11 of the September 15, 2010 Al Kandari habeas petition denial of Judge Colleen Kollar-Kotelly.]

    The administration’s position was staked out before the multiple D.C. Circuit appellate panel decisions issued this year started obliterating any meaningful, if tentative, limits or boundaries on the detention authority granted by the 2001 AUMF, that had been imposed by the federal district judges actually hearing, finally in earnest on their merits, the Guantanamo habeas cases as a result of the Supreme Court’s (Justice Kennedy-authored) Boumediene decision in June, 2008.

    In the most recent habeas corpus decision issued in the wake of those multiple appellate panel decisions, federal district Judge Colleen Kollar-Kotelly, a relative veteran of these cases, describes the current state of the law in the D.C. Circuit – as left undisturbed by the Supreme Court to date, meaning that for the moment it represents the binding state of the law in the United States governing all challenges to their detention by detained persons at Guantanamo – this way, in her Al Kandari habeas denial (emphasis added):

    C. Standard of Detention

    The Government derives its authority to detain Al Kandari from the Authorization for Use of Military Force (“AUMF”), Pub. L. 107-40, 115 Stat. 224 (2001).11 The D.C. Circuit has held that the President’s authority to detain individuals under the AUMF includes, but is not necessarily limited to, “those who are part of forces associated with al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.” Al-Bihani, 590 F.3d at 872. Both prongs of this test, which are informally referred to as the “part of” and the “support” prongs, are “valid criteria that are independently sufficient to satisfy the standard” for lawful detention under the AUMF. Id. at 874.

    In this case, the Government contends that it is lawfully authorized to detain Al Kandari because he was part of al Qaeda, the Taliban, or associated enemy forces. See Jt. List of Contested Issues, Docket No. [663]. Although the D.C. Circuit “has yet to delineate the precise contours of the ‘part of’ inquiry,” Barhoumi, 609 F.3d at 424, this Court is not without guidance. The Court of Appeals has emphasized that the focus of this inquiry is whether an individual is functionally part of” al Qaeda, the Taliban or affiliated forces. Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010) (emphasis added). For example, while proof that “a detainee was part of the ‘command structure’ of al Qaeda [] satisfies the requirement to show that he was ‘part of’ al Qaeda,” such a showing is not necessary. Awad, 608 F.3d at 11 (rejecting claim that “there must be a specific factual finding that [the detainee] was part of the ‘command structure’ of al Qaeda”); Bensayah, 610 F.3d at 725 (“That an individual operates within al Qaeda’s formal command structure is surely sufficient but is not necessary to show he is ‘part of’ the organization.”). Similarly, proof that an individual actually fought for or on behalf of al Qaeda or the Taliban, while sufficient, is also not required to demonstrate that an individual is a “part of” such enemy forces. See Al-Bihani, 590 F.3d at 872-73. Ultimately, the determination whether an individual is a “part of” al Qaeda, the Taliban, or associated forces, “must be made on a case-by-case basis by using a functional rather a formal approach and by focusing upon the actions of the individual in relation to the organization.” Bensayah, 610 F.3d at 725.

    […]

    Accordingly, taken as a whole, the Court finds that this record makes it more likely than not that Al Kandari became part of al Qaeda, the Taliban, or their associated enemy forces, and is therefore lawfully detained pursuant to the President’s authority under the AUMF.

    […]

    III. CONCLUSION

    Because the Government has met its burden by a preponderance of the evidence in this case, the Court shall DENY Al Kandari’s petition for habeas corpus.

    Date: September 15, 2010

    COLLEEN KOLLAR-KOTELLY
    United States District Judge

    Given that the government presently must only meet a more-likely-than-not “preponderance of the evidence” standard to demonstrate that any detainee – all of whom, remember, were supposedly “enemy combatants” in an actual “armed conflict,” as defined by the law of war, in which the U.S. Armed Forces were authorized to use “all necessary and appropriate force” against the perpetrators of 9/11 and their accomplices – challenging his detention in federal court was, before capture, “a part of forces associated with al Qaeda” ora part of forces associated with the Taliban” or that he was someone “who purposefully and materially supported such forces in hostilities against US Coalition partners,” even though the individual never “actually fought for or on behalf of al Qaeda or the Taliban,” under the current state of D.C. Circuit law, it seems quite likely that we will soon see a trend emerging of increasing denials of habeas corpus challenges to Guantanamo detention at the district court level – unless and until the Supreme Court deigns to re-engage on the issue to bring the rogue D.C. Circuit back within the letter and the spirit of both Boumediene and the 2001 Congressional Authorization for the Use of Military Force.

    • powwow says:

      Nicely tying together that “unraveling” AUMF-bounded armed-conflict detention standard with the Al-Awlaki litigation’s necessary related focus on where, and with whom, the U.S. military is actually engaged in a lawful armed conflict, is this commentary posted yesterday by Jonathan Hafetz (co-editor of The Guantanamo Lawyers: Inside a Prison Outside the Law), at Balkinization:

      The (Still) Unaddressed Threshold Question: What is the “War on Terror” Anyway?

      Guest Blogger

      Jonathan Hafetz

      More than nine years after 9/11, central questions underpinning America’s “war on terror” remain unresolved: who is the enemy, what connection must a person have to it, and, more fundamentally, what is the legitimate scope of the conflict itself. Although these issues have arisen in habeas corpus challenges to military detentions at Guantánamo and elsewhere, that litigation has yet to provide definitive answers. With respect to the president’s legal authority to hold “enemy combatants,” the Supreme Court has held only that the president may, under the 2001 Authorization for Use of Military Force, detain Taliban and al Qaeda soldiers who engage in combat against U.S. or allied armed forces in Afghanistana limited ruling that does not begin to address the expansive assertions of global-wide war powers by the former and current administrations.

      A recent suit, Al-Aulaqi v. Obama, takes on another facet of the “war on terror”—the controversial practice of targeted killing. […] The suit’s core argument—that the extrajudicial killing of al-Aulaqi violates the Constitution—rests on the proposition that al-Aulaqi, an alleged al Qaeda leader in Yemen, is outside the legally recognized parameters of armed conflict. “The United States,” plaintiff argues, is “not at war with Yemen, or within it.” As such, dehors armed conflict, ordinary constitutional norms apply.

      The administration defends only in cursory fashion its target[ed] killing policy and theory of armed conflict underlying it. […]

      The government’s argument for dismissal focuses instead on why the district court should duck the critical question regarding the scope of the armed conflict:… […]

      The courts may ultimately decline to address the merits in al-Aulaqi. A resolution on non-justiciability grounds, however, would only help perpetuate the legal uncertainty over targeted killing, much as the habeas litigation has failed to resolve basic questions over the president’s military detention powers. In the end, one legacy of the “war on terrorism” may be the judiciary’s failure to address the question at the heart of all the litigation this “war” has spawned.

      • bobschacht says:

        That is why this legislation is so important:

        http://lee.house.gov/index.cfm?sectionid=57&sectiontree=35,57&itemid=2154

        This is legislation to repeal the Authorization for Use of Military
        Force. I’ve been yammering about this for a while now, and it was the
        topic of our last call, with David Swanson. This will limit Obama’s
        escalation of the occupations. But more than that, it will prevent him
        from using our being “at war” as the excuse for imposing executive
        takeover of our government. Without “war” there can be no “war
        powers,” and without them, we have the opportunity to return to a tri- partite government.
        As John Yoo said, “None of these policies would be legal unless the
        United States were at war.” We are not, in fact, at war, since
        Congress hasn’t declared war, but repealing this outrageous law will
        make that clear even to Congress.
        We need to do everything we can to pass this legislation.

        This was circulated by Susan Harman, and I agree with her.

        Bob in AZ

        • bmaz says:

          It may be important (and it would be critically important if serious), but it does not stand a chance in hell and was only resubmitted again as an election stunt.

  15. timtimes says:

    Now free of his Jewish overlords, I wonder if Rick Sanchez will now feel free to report on the Jewish involvement on 911?
    Enjoy.