United States of America
Practice Relating to Rule 99. Deprivation of Liberty
The US Field Manual (1956) states that “unlawful confinement of a protected person” is a grave breach of the 1949 Geneva Conventions.
The US Naval Handbook (2007) states:
Because unlawful combatants do not have combatant immunity, they may be prosecuted for their unlawful actions. However, prosecution is not required and unlawful combatants may be detained until the cessation of hostilities without being prosecuted for their acts. If prosecuted and convicted, unlawful combatants may be detained for the duration of their sentence, even if it extends beyond the cessation of hostilities. Likewise, even if their criminal sentence has been served but hostilities have not ceased, they may be held until the cessation of hostilities. Regardless of the fact that hostilities have not ceased or the full sentence has not been served, a detaining nation may release an unlawful combatant at any time.
The Handbook defines unlawful enemy combatants as “persons not entitled to combatant immunity, who engage in acts against the United States or its coalition partners in violation of the laws and customs of war during armed conflict”.
Under the US War Crimes Act (1996), grave breaches of the 1949 Geneva Conventions are war crimes.
In July 2007, and in accordance with section 6(a)(3) of the Military Commissions Act (2006), the US President issued an Executive Order which stated that a “Program of Detention and Interrogation Operated by the Central Intelligence Agency” complied with US obligations under common Article 3 of the 1949 Geneva Conventions. The Executive Order stated in part:
By the authority vested in me as President and Commander in Chief of the Armed Forces by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force (Public Law 107 40), the Military Commissions Act of 2006 (Public Law 109 366), and section 301 of title 3, United States Code, it is hereby ordered as follows:
Section 1. General Determinations.
(a) The United States is engaged in an armed conflict with al Qaeda, the Taliban, and associated forces. Members of al Qaeda were responsible for the attacks on the United States of September 11, 2001, and for many other terrorist attacks, including against the United States, its personnel, and its allies throughout the world. These forces continue to fight the United States and its allies in Afghanistan, Iraq, and elsewhere, and they continue to plan additional acts of terror throughout the world. On February 7, 2002, I determined for the United States that members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war. I hereby reaffirm that determination.
(b) The Military Commissions Act defines certain prohibitions of Common Article 3 for United States law, and it reaffirms and reinforces the authority of the President to interpret the meaning and application of the Geneva Conventions.
Sec. 3. Compliance of a Central Intelligence Agency Detention and Interrogation Program with Common Article 3.
(a) Pursuant to the authority of the President under the Constitution and the laws of the United States, including the Military Commissions Act of 2006, this order interprets the meaning and application of the text of Common Article 3 with respect to certain detentions and interrogations, and shall be treated as authoritative for all purposes as a matter of United States law, including satisfaction of the international obligations of the United States. I hereby determine that Common Article 3 shall apply to a program of detention and interrogation operated by the Central Intelligence Agency as set forth in this section. The requirements set forth in this section shall be applied with respect to detainees in such program without adverse distinction as to their race, color, religion or faith, sex, birth, or wealth.
(b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:
(i) the conditions of confinement and interrogation practices of the program do not include:
(A) torture, as defined in section 2340 of title 18, United States Code;
(B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;
(C) other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18, United States Code;
(D) any other acts of cruel, inhuman, or degrading treatment or punishment prohibited by the Military Commissions Act (subsection 6(c) of Public Law 109 366) and the Detainee Treatment Act of 2005 (section 1003 of Public Law 109 148 and section 1403 of Public Law 109 163);
(E) willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or
(F) acts intended to denigrate the religion, religious practices, or religious objects of the individual;
(ii) the conditions of confinement and interrogation practices are to be used with an alien detainee who is determined by the Director of the Central Intelligence Agency:
(A) to be a member or part of or supporting al Qaeda, the Taliban, or associated organizations; and
(B) likely to be in possession of information that:
(1) could assist in detecting, mitigating, or preventing terrorist attacks, such as attacks within the United States or against its Armed Forces or other personnel, citizens, or facilities, or against allies or other countries cooperating in the war on terror with the United States, or their armed forces or other personnel, citizens, or facilities; or
(2) could assist in locating the senior leadership of al Qaeda, the Taliban, or associated forces.
The Executive Order was revoked in 2009.
In 2009, the US President issued Executive Order 13491, Ensuring Lawful Interrogations, which stated:
By the authority vested in me by the Constitution and the laws of the United States of America, in order to improve the effectiveness of human intelligence-gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the  Geneva Conventions, and to take care that the laws of the United States are faithfully executed, I hereby order as follows:
Section 1. Revocation. Executive Order 13440 of July 20, 2007, is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order. Heads of departments and agencies shall take all necessary steps to ensure that all directives, orders, and regulations of their respective departments or agencies are consistent with this order.
Sec. 4. Prohibition of Certain Detention Facilities, and Red Cross Access to Detained Individuals.
(a) CIA Detention
. The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.
In 2009, the US President issued Executive Order 13492, Closure of Guantánamo Detention Facilities, which stated:
By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base (Guantánamo) and promptly to close detention facilities at Guantánamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:
Sec. 2. Findings.
(a) Over the past 7 years, approximately 800 individuals whom the Department of Defense has ever determined to be, or treated as, enemy combatants have been detained at Guantánamo. The Federal Government has moved more than 500 such detainees from Guantánamo, either by returning them to their home country or by releasing or transferring them to a third country. The Department of Defense has determined that a number of the individuals currently detained at Guantánamo are eligible for such transfer or release.
Sec. 3. Closure of Detention Facilities at Guantánamo
. The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order. If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.
In the Pohl case
before the US Military Tribunal at Nuremberg in 1947, 18 accused were charged, inter alia
, with the war crime of “illegal imprisonment”.
Three of the accused were acquitted and the remainder were convicted receiving sentences ranging from ten years to death by hanging.
In 2002, in the Mehinovic case, a civil lawsuit filed on behalf of four Bosnian Muslims who were tortured by a Bosnian-Serb soldier in Bosnia-Herzegovina in 1992, the US District Court Northern District of Georgia found the defendant liable for torture; cruel, inhuman and degrading treatment; arbitrary detention; war crimes; crimes against humanity; and genocide. The Court awarded the plaintiffs US$140 million in damages. In its judgment, the Court stated:
Arbitrary detention is a violation of customary international law and thus actionable under the ATCA [Alien Tort Claims Act]. See Alvarez, 266 F.3d at 1052–53; Fernandez-Roque v. Smith, 622 F.Supp. 887, 903 (N.D.Ga.1985); Forti, 672 F.Supp. at 1541. “Arbitrary detention is cited as a violation of international law in all comprehensive international human rights instruments.” [Restatement (Third) of Foreign Relations Law § 702, Reporters’ Note 6 (1987) (citing, inter alia, Universal Declaration, art. 9; ICCPR [International Covenant on Civil and Political Rights], art 9; European Convention, art. 5; American Convention, art. 7)]. Generally, detention is arbitrary if “it is not pursuant to law; it may be arbitrary also if it is incompatible with the principles of justice or with the dignity of the human person.” [Restatement (Third) of Foreign Relations Law, § 702, comment h (1987)] More specifically, arbitrary detention is the detention of a person in an official detention facility or in any other place, without notice of charges and failure to bring that person to trial within a reasonable time. Id.; see Fernandez-Roque, 622 F.Supp. at 903 (indefinite detention of Cuban refugees without periodic hearings violates customary international law); see also Soroa-Gonzales v. Civiletti, 515 F.Supp. 1049, 1061, n. 18. (N.D.Ga.1981) (indefinite detention of Cuban refugees would violate customary international law if question were properly before court). Here, plaintiffs each were detained without ever being advised of any charges against them. There is no evidence that any was ever brought before a court or ever tried for any offense, or that the detentions were made pursuant to any law.
Acts of torture, inhuman treatment, and arbitrary detention of civilians committed in the course of hostilities violate the international law of war as codified in the Geneva Conventions and, hence, are a proper basis for liability under the ATCA. Kadic v. Karadzic, 70 F.3d at 242–43
. Such acts, whether committed in an international armed conflict or a non-international armed conflict, violate customary international law and are enforceable under the ATCA [Alien Tort Claims Act, 28 U.S.C. § 1350 (1988)].
In 2004, in the Hamdi case involving a US citizen being detained indefinitely as an “enemy combatant”, the US Supreme Court reversed the dismissal of a habeas corpus petition by a lower court, recognized the power of the government to detain “enemy combatants”, but ruled that detainees who are US citizens must have the ability to challenge their detention before a neutral decision-maker. On the matter of the capture and detention of combatants, the Court stated:
The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by “universal agreement and practice,” are “important incident[s] of war.” Ex parte Quirin, supra, at 28, 30. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red Cross 571, 572 (2002) (“[C]aptivity in war is ‘neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war’” (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int’l L. 172, 229 (1947))); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) (“The time has long passed when ‘no quarter’ was the rule on the battlefield . … It is now recognized that ‘Captivity is neither a punishment nor an act of vengeance,’ but ‘merely a temporary detention which is devoid of all penal character.’ … ‘A prisoner of war is no convict; his imprisonment is a simple war measure.’” (citations omitted)); cf. In re Territo, 156 F.2d 142, 145 (CA9 1946) (“The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely and in time exchanged, repatriated or otherwise released” (footnotes omitted)).
There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U.S., at 20, 87 L. Ed. 3, 63 S. Ct. 2. We held that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.” Id., at 37–38, 87 L. Ed. 3, 63 S. Ct. 2. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. See id., at 30–31, 87 L. Ed. 3, 63 S. Ct. 2. See also Lieber Code P 153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 F. Lieber, Miscellaneous Writings, p 273 P. 153 (1880) (contemplating, in code binding the Union Army during the Civil War, that “captured rebels” would be treated “as prisoners of war”). Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States,” …; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.
In light of these principles, it is of no moment that the AUMF [Authorization for Use of Military Force Against Terrorists, 115 Stat 224, enacted 18 September 2001] does not use specific language of detention. Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.
Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. The Government responds that “the detention of enemy combatants during World War II was just as ‘indefinite’ while that war was being fought.” Id., at 16, 87 L. Ed. 3, 63 S. Ct. 2. We take Hamdi’s objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the “war on terror,” although crucially important, are broad and malleable. As the Government concedes, “given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement.” Ibid. The prospect Hamdi raises is therefore not farfetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.
It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949,  6 U. S. T. 3316, 3406, T. I. A. S. No. 3364 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities”). See also Article 20 of the Hague Convention (II) on Laws and Customs of War on Land, July 29, 1899, 32 Stat 1817 (as soon as possible after “conclusion of peace”); Hague Convention (IV), supra, Oct. 18, 1907, 36 Stat 2301 (“conclusion of peace” (Art. 20)); Geneva Convention, supra, July 27, 1929, 47 Stat 2055 (repatriation should be accomplished with the least possible delay after conclusion of peace (Art. 75)); Paust, Judicial Power to Determine the Status and Rights of Persons Detained without Trial, 44 Harv. Int’l L. J. 503, 510–511 (2003) (prisoners of war “can be detained during an armed conflict, but the detaining country must release and repatriate them ‘without delay after the cessation of active hostilities,’ unless they are being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences” (citing Arts. 118, 85, 99, 119, 129, Geneva Convention (III), 6 U. S. T., at 3384, 3392, 3406, 3418)).
Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. … The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.
[emphasis in original]
In 2006, in the El Masri case, a civil suit in which the plaintiff claimed to have been an innocent victim of the United States’ extraordinary rendition program and sought redress from the former Director of the Central Intelligence Agency (CIA), private corporations allegedly involved in the program, and unknown employees of both the CIA and the private corporations, the Court granted the Government’s motion to dismiss, finding that the claim of state secrets was valid. The Court stated:
[I]t is important to note that, unlike other privileges, the state secrets privilege is absolute and therefore once a court is satisfied that the claim is validly asserted, the privilege is not subject to a judicial balancing of the various interests at stake.
[T]he substance of El-Masri’s publicly available complaint alleges a clandestine intelligence program, and the means and methods the foreign intelligence services of this and other countries used to carry out the program. And, as the public declaration makes pellucidly clear, any admission or denial of these allegations by defendants in this case would reveal the means and methods employed pursuant to this clandestine program and such a revelation would present a grave risk of injury to national security.
To succeed on his claims, El-Masri would have to prove that he was abducted, detained, and subjected to cruel and degrading treatment, all as part of the United States’ extraordinary rendition program. As noted above, any answer to the complaint by the defendants risks the disclosure of specific details about the rendition argument.
[W]hile dismissal of the complaint deprives El-Masri of an American judicial forum for vindicating his claims, well-established and controlling legal principles require that in the present circumstances, El-Masri’s private interests must give way to the national interest in preserving state secrets. The United States’ motion to dismiss must therefore be granted.
It is important to emphasize that the result reached here is required by settled, controlling law. It is in no way an adjudication of, or comment on, the merit or lack of merit of El-Masri’s complaint. Nor does this ruling comment or rule in any way on the truth or falsity of his factual allegations; they may be true or false, in whole or in part. Further, it is also important that nothing in this ruling should be taken as a sign of judicial approval or disapproval of rendition programs; it is not intended to do either. In times of war, our country, chiefly through the Executive Branch, must often take exceptional steps to thwart the enemy. Of course, reasonable and patriotic Americans are still free to disagree about the propriety and efficacy of those exceptional steps. But what this decision holds is that these steps are not proper grist for the judicial mill where, as here, state secrets are at the center of the suit and the privilege is validly invoked.
Finally, it is worth noting that putting aside all the legal issues, if El-Masri’s allegations are true or essentially true, then all fair-minded people, including those who believe that state secrets must be protected, that this lawsuit cannot proceed, and that renditions are a necessary step to take in this war, must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy. Yet, it is also clear from the result reached here that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch.
The Al-Marri case in June 2007 involved a citizen of Qatar, legally resident in the United States, who had been arrested in December 2001 on terrorism-related charges and confined to a US-naval prison in Charleston as an enemy combatant (the US President having determined that he was closely associated with al Qaeda and engaged in conduct in preparation for acts of terrorism). Appearing before the US Court of Appeals for the Fourth Circuit, Al-Marri appealed a decision of a District Court, which had denied his petition for a writ of habeas corpus. In a majority judgment, the Court of Appeals rejected the Government’s arguments that civilians become enemy combatants if they engaged in criminal conduct on behalf of an enemy organization and that the President had inherent constitutional authority to order the military to detain such persons. It reversed the decision of the lower court and remanded the case back to it, with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release Al-Marri from military custody. On matters regarding “deprivation of liberty” and “combatant status”, the Court of Appeals found:
The act of depriving a person of the liberty protected by our Constitution is a momentous one; thus, recognized exceptions to criminal process are narrow in scope, and generally permit only limited periods of detention. See, e.g., Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972). And, of course, the Government can never invoke an exception, and so detain a person without criminal process, if the individual does not fit within the narrow legal category of persons to whom the exception applies …
, the plurality explained that precisely the same principles apply when the Government seeks to detain a person as an enemy combatant. Under the habeas procedure prescribed in Hamdi
, if the Government asserts an exception to the usual criminal process by detaining as an enemy combatant an individual with constitutional rights, it must proffer evidence to demonstrate that the individual “qualif[ies]” for this exceptional treatment. 542 U.S. at 516, 534. Only after
the Government has “put forth credible evidence that” an individual “meets the enemy-combatant criteria” does “the onus” shift to the individual to demonstrate “that he falls outside the [enemy combatant] criteria.” Id.
at 534. For in this country, the military cannot seize and indefinitely detain an individual – particularly when the sole process leading to his detention is a determination by the Executive that the detention is necessary – unless the Government demonstrates that he “qualif[ies]” for this extraordinary treatment because he fits within the “legal category” of enemy combatants. Id.
at 516, 522 n.1.
[emphasis in original]
…[W]e note that American courts have often been reluctant to follow international law in resolving domestic disputes. In the present context, however, they, like the Government here, have relied on the law of war – treaty obligations including the Hague and Geneva Conventions and customary principles developed alongside them. The law of war provides clear rules for determining an individual’s status during an international armed conflict, distinguishing between “combatants” [(members of a nation’s military, militia, or other armed forces, and those who fight alongside them) and “civilians” (all other persons)]. See, e.g.
, Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) arts. 2, 4, 5, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) art. 4, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. American courts have repeatedly looked to these careful distinctions made in the law of war in identifying which individuals fit within the “legal category” of “enemy combatants” under our Constitution. See, e.g.
542 U.S. at 518; Quirin,
317 U.S. at 30–31 & n.7; Milligan,
71 U.S. at 121–22; Padilla,
423 F.3d at 391.
In view of the holdings in Hamdi
, we find it remarkable that the Government contends that they “compel the conclusion” that the President may detain al-Marri as an enemy combatant. For unlike Hamdi
, al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world. See
Rapp Declaration (alleging none of these facts, but instead that “Al-Marri engaged in conduct in preparation for acts of international terrorism intended to cause injury or adverse effects on the United States”).
Rather than supporting the Government’s position, the Supreme Court’s most recent terrorism case provides an additional reason for rejecting the contention that al-Marri is an enemy combatant. In Hamdan, the Court held that because the conflict between the United States and al Qaeda in Afghanistan is not “between nations,” it is a “‘conflict not of an international character’” – and so is governed by Common Article 3 of the Geneva Conventions. See 126 S. Ct. at 2795; see also id. at 2802 (Kennedy, J., concurring). Common Article 3 and other Geneva Convention provisions applying to non-international conflicts (in contrast to those applying to international conflicts, such as that with Afghanistan’s Taliban government) simply do not recognize the “legal category” of enemy combatant. See Third Geneva Convention, art. 3, 6 U.S.T. at 3318. As the International Committee of the Red Cross – the official codifier of the Geneva Conventions – explains, “an ‘enemy combatant’ is a person who, either lawfully or unlawfully, engages in hostilities for the opposing side in an international armed conflict;” in contrast, “[i]n non-international armed conflict combatant status does not exist.” Int’l Comm. of the Red Cross, Official Statement: The Relevance of IHL in the Context of Terrorism, at 1, 3 (Feb. 21, 2005), http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/terrorismihl-210705 (emphasis added).
Perhaps for this reason, the Government ignores Hamdan’s holding that the conflict with al Qaeda in Afghanistan is a non-international conflict, and ignores the fact that in such conflicts the “legal category” of enemy combatant does not exist. Indeed, the Government’s sole acknowledgment of Hamdan in its appellate brief is a short footnote, in which it asserts that “the Court took it as a given that Hamdan was subject to detention as an enemy combatant during ongoing hostilities.” The weakness of this response is apparent. Not only does it avoid the holding in Hamdan that the conflict between the United States and al Qaeda is a non-international conflict, but also it suggests that the Supreme Court approved Hamdan’s detention when the legality of that detention was not before the Court, and in fact, the legality of the detention of those like Hamdan, captured and detained in the conflict with al Qaeda outside the United States, is still being litigated. See, e.g., Boumediene, 375 U.S. App. D.C. 48, 476 F.3d 981.
Moreover, even were the Supreme Court ultimately to approve the detention of Hamdan and those like him, that would not bolster the Government’s position at all in the case at hand. This is so because, since the legal status of “enemy combatant” does not exist in non-international conflicts, the law of war leaves the detention of persons in such conflicts to the applicable law of the detaining country. In al-Marri’s case, the applicable law is our Constitution. Thus, even if the Supreme Court should hold that the Government may detain indefinitely Hamdan and others like him, who were captured outside
the United States and lacked substantial and voluntary connections to this country, that would provide no support for approving al-Marri’s military detention. For not only was al-Marri seized and detained within
the United States, he also has substantial connections to the United States, and so plainly is protected by the Due Process Clause
[Fifth Amendment to the US Constitution].
[emphasis in original]
… Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them “enemy combatants.”
To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them “enemy combatants,” would have disastrous consequences for the Constitution – and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause
, the Due Process Clause
, and the rights to criminal process in the Fourth
, and Eighth Amendments
; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power – were a court to recognize it – that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.
Having ordered that Al-Marri’s military detention cease in the 11 June 2007 judgment, the Court of Appeals for the Fourth Circuit subsequently vacated the judgment and held an en banc rehearing on 31 October 2007. In its revised judgment in the case, issued on 15 July 2008, the court held that Al-Marri could be held in military detention indefinitely as an enemy combatant, stating:
Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote … that, if the Government’s allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote … that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, al-Marri has not been afforded sufficient process to challenge his designation as an enemy combatant.
Accordingly, the judgment of the district court is reversed and remanded for further proceedings consistent with the opinions that follow.
In the Hamlily case in 2009, in which the Petitioners challenged the legality of their detention at Guantánamo by seeking writs of habeas corpus, the District Court for the US District of Columbia ruled that the US Government’s detention policy is generally consistent with the authority conferred on the US President under the Authorization for Use of Military Force (AUMF), Public Law 107-40, 115 Stat. 224, 18 September 2001, and core law of war principles that govern non-international armed conflicts. The Court stated in relation to the background of the case:
On March 13, 2009, in response to a prior order of this Court, the government [Department of Justice] submitted a refinement of its position with respect to its authority to detain those individuals being held at Guantánamo. The government proposed the following “definitional framework”:
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.
Resp’ts’ Mem. at 2. [Resp’ts’ Mem. Regarding the Detention Authority Relative to Individuals Held at Guantánamo Bay, In re: Guantánamo Bay Litigation, Misc. No. 08-442 (TFH), 13 March 2009].
To aid its consideration of these and other related issues, the Court held a hearing on April 17, 2009. Less than a week later, Judge Walton issued his opinion in Gherebi v. Obama
, Civ. A. No. 04-1164, 2009 WL 1068955 (D.D.C. Apr. 22, 2009). Gherebi
concerns the same question at issue here and Judge Walton’s thorough and thoughtful opinion advances this Court’s analysis considerably. He concluded that “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.” Id.
[footnotes in original omitted]
In its broad analysis of the case, the Court stated:
[T]he Court turns to the government’s proposed framework. Although this Court concurs in much of the reasoning and conclusions of Gherebi, it does not agree with the decision to adopt the government’s framework in its entirety. Specifically, the Court rejects the concept of “substantial support” as an independent basis for detention. Likewise, the Court finds that “directly support[ing] hostilities” is not a proper basis for detention. In short, the Court can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of “support” as a valid ground for detention. The Court does not accept the government’s position in full, then, even given the deference accorded to the Executive in this realm, because it is ultimately the province of the courts to say “what the law is,” Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803), and in this context that means identifying the “permissible bounds” of the Executive’s detention authority, Hamdi, 542 U.S. at 522 n.1. 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.
With the exception of these two “support”-based elements, however, the Court will adopt the government’s proposed framework, largely for the reasons explained in Gherebi
. The AUMF and the law of war do authorize the government to detain those who are “part of” the “Taliban or al Qaida forces.” Because the AUMF permits the President “to use all necessary and appropriate force” against “organizations” involved in the September 11 attacks, it naturally follows that force is also authorized against the members of those organizations. In light of Hamdi
and subsequent cases, such force includes the power to detain. That is consistent with the law of war principles governing non-international conflicts. The authority also reaches those who were members of “associated forces,” which the Court interprets to mean “co-belligerents” as that term is understood under the law of war. Lastly, the government’s detention authority covers “any person who has committed a belligerent act,” which the Court interprets to mean any person who has directly participated in hostilities. But while the Court concludes that the concepts of “substantial support” and “direct support” are not, under the law of war, independent bases for detention, evidence tending to demonstrate that a petitioner provided significant “support” is relevant in assessing whether he was “part of” a covered organization (through membership or otherwise) or “committed a belligerent act” (through direct participation in hostilities).
[footnote in original omitted]
In its analysis of the government’s “definitional” framework” providing for the detention of “Taliban or al Qaida forces or associated forces”, the Court stated:
Petitioners argue, just as they did in Gherebi, that because they cannot be classified as “combatants” under Article 4(A) of the Third Geneva Convention [1949 Geneva Convention III] or Article 43 of  Additional Protocol I, they must be “civilians” – a classification that means they are not subject to military force (i.e., detention) “unless and for such time as they take a direct part in hostilities.” [Additional Protocol I] arts. 51(1), 51(3) … Putting aside for the moment the restrictive definition of “direct participation” advanced by petitioners, their advocacy of a detention authority based upon the dichotomy between combatants and civilians in traditional international armed conflicts is flawed. To begin with, the U.S. conflict with al Qaeda is a non-international armed conflict; hence, Article 4 and Additional Protocol I do not apply. Moreover, the government no longer seeks to detain petitioners on the basis that they are “enemy combatants.” Indeed, the government’s abandonment of this term is an implicit acknowledgment that “[i]n non-international armed conflict combatant status does not exist. … The treaty authorities that regulate non-international armed conflicts – Common Article 3, Additional Protocol II and the International Committee of the Red Cross’s Commentaries on both – in fact do not “make any reference whatsoever to the term ‘combatant.’” Gherebi, 2009 WL 1068955, at *18. Gherebi correctly observes that “petitioners evidently interpret this lack of protection for ‘combatants’ in non-international armed conflicts to mean that every individual associated with the enemy to any degree in such a conflict must be treated as a civilian.” Id. Gherebi then explains:
The Geneva Conventions restrict the conduct of the President in armed conflicts; they do not enable it. And the absence of any language in Common Article 3 and  Additional Protocol II regarding prisoners of war or combatants means only that no one fighting on behalf of an enemy force in a non-international armed conflict can lay claim to the protections of such status, not that every signatory to the Geneva Conventions must treat the members of an enemy force in a civil war or transnational conflict as civilians regardless of how important the members in question might be to the command and control of the enemy force or how well organized and coordinated that force might be. Id.
This Court agrees that the lack of combatant status in non-international armed conflicts does not, by default, result in civilian status for all, even those who are members of enemy “organizations” like al Qaeda. Moreover, the government’s claimed authority to detain those who were “part of” those organizations is entirely consistent with the law of war principles that govern non-international armed conflicts. Common Article 3, by its very terms, contemplates the “detention” of “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their weapons and those placed hors de combat,” and commands that they be treated “humanely.” Third Geneva Convention, art. 3(1). At a minimum, this restriction establishes that States engaged in non-international armed conflict can detain those who are “part of” enemy armed groups. Gherebi, 2009 WL 1068955, at *19. Similarly, Part IV of Additional Protocol II, in particular Article 13. … Such protections for “civilians” would be superfluous “if every member of the enemy in a non-international armed conflict is a civilian.” Gherebi, 2009 WL 1068955, at *20. The clear implication of Part IV, then, is that Additional Protocol II recognizes a class of individuals who are separate and apart from the “civilian population” – i.e., members of enemy armed groups. Indeed, it makes clear that “[t]hose who belong to armed forces or armed groups may be attacked at any time.” Int’l Comm. of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 1453 (Sandoz et al. eds. 1987) (discussing Article 13 of Additional Protocol II). As for the practical application of these principles, historical examples are few and far between. There are, however, several decisions of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) that have recognized that, in a non-international armed conflict, membership in an armed group makes one liable to attack and incapacitation independent of direct participation in hostilities. …
In sum, then, the Court agrees with Gherebi and hence rejects petitioners’ argument “that the laws of war permit a state to detain only individuals who ‘directly participate’ in hostilities in non-international armed conflicts.” 2009 WL 1068955, at *21. The Court also concludes that the authority claimed by the government to detain those who were “part of … Taliban or al Qaida forces” is consistent with the law of war. Even though this portion of the government’s framework is consistent with the law of war, however, the government’s position cannot be said to reflect customary international law because, candidly, none exists on this issue. See Jean-Marie Henckaerts, 87 Int’l Rev. of the Red Cross 175, 190 (Mar. 2005) (“[I]t is not clear whether members of armed opposition groups are civilians who lose their protection from attack when directly participating in hostilities or whether members of such groups are liable to attack as such.”). Nonetheless, the Court finds that the government’s claimed authority is consistent with, and is not affirmatively prohibited by, the law of war. …
In addition to members of al Qaeda and the Taliban, the government’s detention authority also reaches those who were members of “associated forces.” For purposes of these habeas proceedings, the Court interprets the term “associated forces” to mean “co-belligerents” as that term is understood under the law of war. … [T]he government has the authority to detain members of “associated forces” as long as those forces would be considered co-belligerents under the law of war.
With respect to the criteria to be used in determining whether someone was “part of” the “Taliban or al Qaida or associated forces,” the Court will not attempt to set forth an exhaustive list because such determinations must be made on an individualized basis. But this Court will, by necessity, employ an approach that is more functional than formal, as there are no settled criteria for determining who is a “part of” an organization such as al Qaeda. Cf. Third Geneva Convention, art. 4(A) (identifying characteristics of membership in the armed forces or militia for purposes of prisoner of war status in an international armed conflict). “[M]ere sympathy for or association with an enemy organization does not render an individual a member” of that enemy organization. Gherebi
, 2009 WL 1068955, at *21. The key inquiry, then, is not necessarily whether one self-identifies as a member of the organization (although this could be relevant in some cases), but whether the individual functions or participates within or under the command structure of the organization – i.e., whether he receives and executes orders or directions.
[footnotes in original omitted]
In its analysis of the government’s “definitional” framework” providing for the detention of persons who “substantially supported” Taliban or al Qaida forces, the Court stated:
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. … 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. … [A]lthough this concept may be attractive from a policy perspective, and indeed could be the basis for the development of future domestic legislation or international law, there is at this time no justification – in the AUMF or the law of war – for such an approach. 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.
In its analysis of the government’s “definitional” framework” providing for the detention of any person who has “committed a belligerent act, or has directly supported hostilities” in aid of Taliban or al Qaida forces, the Court stated:
For essentially the same reasons [as were provided in the court’s analysis of the detention of persons who “substantially supported” Taliban or al Qaida forces], 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. The government does, however, have the authority to detain “any person who has committed a belligerent act.” And just as the Court will consider evidence relating to “substantial support” of covered organizations in assessing whether an individual was functionally “part of” the organization, so, too, will it consider evidence of “direct support” for hostilities in assessing whether an individual “committed a belligerent act.”
For purposes of these habeas
proceedings, the Court interprets the phrase “committed a belligerent act” to cover any person who has directly participated in hostilities. That conclusion is consistent with the law of war. See Additional Protocol II, art. 13(3) (stating that civilians shall not be subject to military force “unless and for such time as they take a direct part in hostilities”); Additional Protocol I, art. 51(3) (same).
In conclusion, the Court stated:
foretold, drawing the “permissible bounds” of the government’s detention authority can only truly occur as courts consider the unique facts of each individual case as they are presented. 542 U.S. at 522 n.1. However, the foregoing analysis and interpretation of the government’s authority to detain sets forth some guidance for the parties in that process. After careful consideration, the Court is satisfied that the government’s detention authority is generally consistent with the authority conferred upon the President by the AUMF and the core law of war principles that govern non-international armed conflicts. 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. Therefore, the Court concludes that under the AUMF 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 are or were part of Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed (i.e., directly participated in) a belligerent act in aid of such enemy armed forces.
In the Al-Bihani case in January 2010, involving an appeal by a Yemeni citizen held in detention at Guantánamo Bay since 2002 for the denial of a writ of habeas corpus by a district court, the US Court of Appeals for the District of Columbia Circuit affirmed the order of the lower court, stating with regard to the detention powers granted to the US President by Congress:
Al-Bihani’s many arguments present this court with two overarching questions regarding the detainees at the Guantánamo Bay naval base. The first concerns whom the President can lawfully detain pursuant to statutes passed by Congress. …
Al-Bihani challenges the statutory legitimacy of his detention by advancing a number of arguments based upon the international laws of war. …
Before considering these arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the AUMF [Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001)] and other statutes are limited by the international laws of war. This premise is mistaken. There is no indication in the AUMF, the Detainee Treatment Act of 2005, Pub. L. No. 109-148, div. A, tit. X, 119 Stat. 2739, 27 41–43, or the MCA [Military Commissions Act] of 2006 or 2009, that Congress intended the international laws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF. The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 111(3)–(4) (1987). Even assuming Congress had at some earlier point implemented the laws of war as domestic law through appropriate legislation, Congress had the power to authorize the President in the AUMF and other later statutes to exceed those bounds. See id § 115(1)(a). Further weakening their relevance to this case, the international laws of war are not a fixed code. Their dictates and application to actual events are by nature contestable and fluid. See id § 102 cmts. b & c (stating there is “no precise formula” to identify a practice as custom and that “[i]t is often difficult to determine when [a custom’s] transformation into law has taken place”). Therefore, while the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks, see Hamdi Hamdi v. Rumsfeld, 542 U.S. 507] at 520, their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers. Therefore, putting aside that we find Al-Bihani’s reading of international law to be unpersuasive, we have no occasion here to quibble over the intricate application of vague treaty provisions and amorphous customary principles. The sources we look to for resolution of Al-Bihani’s case are the sources courts always look to: the text of relevant statutes and controlling domestic case law.
Under those sources, Al-Bihani is lawfully detained whether the definition of a detainable person is, as the district court articulated it, “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,” or the modified definition offered by the government that requires that an individual “substantially support” enemy forces. The statutes authorizing the use of force and detention not only grant the government the power to craft a workable legal standard to identify individuals it can detain, but also [in] the application of these definitions. The AUMF authorizes the President 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.” AUMF § 2(a). The Supreme Court in Hamdi ruled that “necessary and appropriate force” includes the power to detain combatants subject to such force. 542 U.S. at 519. Congress, in the 2006 MCA, provided guidance on the class of persons subject to detention under the AUMF by defining “unlawful enemy combatants” who can be tried by military commission. 2006 MCA sec. 3, § 948a(1). The 2006 MCA authorized the trial of an individual who “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).” Id § 948a(1)(A)(i). In 2009, Congress enacted a new version of the MCA with a new definition that authorized the trial of “unprivileged enemy belligerents,” a class of persons that includes those who “purposefully and materially supported hostilities against the United States or its coalition partners.” Military Commissions Act of 2009 (2009 MCA) sec. 1802, §§ 948a(7), 948b(a), 948c, Pub. L. No. 111-84, tit. XVIII, 123 Stat. 2190, 2575– 76. The provisions of the 2006 and 2009 MCAs are illuminating in this case because the government’s detention authority logically covers a category of persons no narrower than is covered by its military commission authority. Detention authority in fact sweeps wider, also extending at least to traditional P.O.W.s, see id § 948a(6), and arguably to other categories of persons. But for this case, it is enough to recognize that any person subject to a military commission trial is also subject to detention, and that category of persons includes 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.
… [T]the facts show Al-Bihani was part of and supported a group – prior to and after September 11 – that was affiliated with Al Qaeda and Taliban forces and engaged in hostilities against a U.S. Coalition partner. Al-Bihani, therefore, falls squarely within the scope of the President’s statutory detention powers.
[footnote in original omitted]
The Court stated the following regarding the appellant’s claim that a cessation of hostilities required his release from detention under international law:
With the government’s detention authority established as an initial matter, we turn to the argument that Al-Bihani must now be released according to longstanding law of war principles because the conflict with the Taliban has allegedly ended.
The Geneva Conventions require release and repatriation only at the “cessation of active hostilities.” Third Geneva Convention [1949 Geneva Convention III] art. 118. That the Conventions use the term “active hostilities” instead of the terms “conflict” or “state of war” found elsewhere in the document is significant. It serves to distinguish the physical violence of war from the official beginning and end of a conflict, because fighting does not necessarily track formal timelines. See id art. 2 (provisions apply “even if the state of war is not recognized”), art. 118 (discussing the possibility of the cessation of active hostilities even in the absence of an agreement to cease hostilities). The Conventions, in short, codify what common sense tells us must be true: release is only required when the fighting stops.
Even so, we do not rest our resolution of this issue on international law or mere common sense. The determination of when hostilities have ceased is a political decision, and we defer to the Executive’s opinion on the matter, at least in the absence of an authoritative congressional declaration purporting to terminate the war. See
Ludecke v. Watkins
, 335 U.S. 160, 168–70 & n.13 (1948) (“[T]ermination [of a state of war] is a political act.”). Al-Bihani urges the court to ignore Ludecke’s
controlling precedent because the President in that case had pronounced that a war was ongoing, whereas in this case the President has made no such pronouncement. We reject Al-Bihani’s entreaty. A clear statement requirement is at odds with the wide deference the judiciary is obliged to give to the democratic branches with regard to questions concerning national security. In the absence of a determination by the political branches that hostilities in Afghanistan have ceased, Al-Bihani’s continued detention is justified.
In the Al-Bihani case in August 2010, the US Court of Appeals for the District of Columbia Circuit issued an en banc statement, denying a request for the court to rehear the case en banc. The statement, which referred to the obiter dicta nature of the 5 January 2010 judgment with respect to the role of international law-of-war principles in interpreting the AUMF [Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001)], stated:
We decline to en banc
this case to determine the role of international law-of-war principles in interpreting the AUMF because, as the various opinions issued in the case indicate, the panel’s discussion of that question is not necessary to the disposition of the merits. See Al–Bihani v. Obama
, 590 F.3d 866, 871, 873–74 (D.C.Cir.2010) (panel opinion); id
. at 883–85 (Williams, J., concurring in the judgment); Al–Bihani v. Obama,
No. 09–5051, slip op. at 1 (D.C.Cir. Aug. 31, 2010) (Kavanaugh, J., concurring in the denial of rehearing en banc
); see also
Gov’t’s Resp. to Pet. for Reh’g and Reh’g En Banc at 1–2 (stating that the dispute over the role of the law of war does not “change[ ] the outcome”).
In the Awad case in June 2010, in which a detainee at Guantánamo Bay, Cuba, appealed a district court’s denial of his petition for a writ of habeas corpus, the US Court of Appeals for the District of Columbia Circuit affirmed the decision of the lower court that the petition be denied. The Court stated:
Determining whether [the appellant] is “part of” al Qaeda is a mixed question of law and fact. Whether our review of the district court’s finding on this question is de novo or for clear error does not matter in this case because the evidence is so strong. Simply recounting the evidence establishes that under either standard of review, the district court’s conclusion that [the appellant] was “part of” al Qaeda was not erroneous. [The appellant] has not come close to meeting his burden of showing reversible error in the district court’s finding that [the appellant] was “part of” al Qaeda at Mirwais Hospital during December 2001.
[The appellant] challenges three of the district court’s legal holdings. These we review de novo. See Al–Bihani, 590 F.3d at 870. First, [the appellant] challenges the district court’s holding that the government must prove its authority to continue to detain him by a preponderance of the evidence. He argues that the government has to meet its burden by clear and convincing evidence. He is incorrect. We have already explicitly held that a preponderance of the evidence standard is constitutional in evaluating a habeas petition from a detainee held at Guantánamo Bay, Cuba. See Al–Bihani, 590 F.3d at 878 (“Our narrow charge is to determine whether a preponderance standard is unconstitutional. Absent more specific and relevant guidance, we find no indication that it is.”). The Al–Bihani holding follows the Supreme Court’s guidance to lower courts in the Hamdi plurality. See Hamdi, 542 U.S. at 534, 124 S.Ct. 2633 (“Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant.”). … [The appellant] seems to argue that there is some uncertainty in the evidentiary standard. Lest there be any further misunderstandings, let us be absolutely clear. A preponderance of the evidence standard satisfies constitutional requirements in considering a habeas petition from a detainee held pursuant to the AUMF [Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001)].
[The appellant] next argues that the district court erred in denying his petition without a specific factual finding that [the appellant] would pose a threat to the United States and its allies if he were released. Again, Al-Bihani forecloses this argument. Al-Bihani makes plain that the United States’s authority to detain an enemy combatant is not dependent on whether an individual would pose a threat to the United States or its allies if released but rather upon the continuation of hostilities. 590 F.3d at 874. [The appellant] again attempts to insert uncertainty into this court’s prior holding where there is none. Whether a detainee would pose a threat to U.S. interests if released is not at issue in habeas corpus proceedings in federal courts concerning aliens detained under the authority conferred by the AUMF.
[The appellant]’s last challenge is that it is not enough that he was found to be “part of” al Qaeda. He argues that there must be a specific factual finding that he was part of the “command structure” of al Qaeda. There is no such requirement under the AUMF. See AUMF (“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.”). Nowhere in the AUMF is there a mention of command structure.
The distinction here is between defining what is necessary and what is sufficient. If the government can establish by a preponderance of the evidence that a detainee was part of the “command structure” of al Qaeda, this satisfies the requirement to show that he was “part of” al Qaeda. But there are ways other than making a “command structure” showing to prove that a detainee is “part of” al Qaeda. For example, if a group of individuals were captured who were shooting at U.S. forces in Afghanistan, and they identified themselves as being members of al Qaeda, it would be immaterial to the government’s authority to detain these people whether they were part of the “command structure” of al Qaeda. Once [the appellant] was “part of” al Qaeda by joining the al Qaeda fighters behind the barricade at the hospital, the requirements of the AUMF were satisfied. See Al
, 590 F.3d at 872 (holding that under the AUMF, a person may be lawfully detained if, inter alia
, he was “part of” al Qaeda forces). [The appellant] points us to no authority from this court or the Supreme Court that would counsel a different decision.
[footnote in original omitted]
The Court concluded:
[The appellant] points us to no legal authority for the proposition that he must be a part of al Qaeda’s “command structure” to be detained. Accordingly, we affirm the district court’s denial of his petition for a writ of habeas corpus.
In the Bensayah case in June 2010, in which a detainee at Guantánamo Bay, Cuba, appealed a district court’s denial of his petition for a writ of habeas corpus, the US Court of Appeals for the District of Columbia Circuit remanded the case to the lower court for it to determine if the appellant was “functionally” part of al Qaeda and therefore lawfully detained under the Authorization for Use of Military Force (AUMF). The Court stated:
[The appellant], an Algerian citizen, was arrested by the Bosnian police on immigration charges in late 2001. He … and five other Algerian men arrested in Bosnia … were then turned over to the United States Government and transported to the U.S. Naval Station at Guantánamo Bay, where they have been detained since January 2002.
In 2004 [the appellant] and the five other detainees petitioned the district court for writs of habeas corpus. Although their petitions were originally dismissed, Khalid v. Bush, 355 F.Supp.2d 311, 314 (D.D.C. 2005), they were reinstated after the Supreme Court held that detainees at Guantánamo Bay are constitutionally “entitled to the privilege of habeas corpus to challenge the legality of their detention,” Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 2262, 171 L.Ed.2d 41 (2008).
In August 2008 the district court entered a case management order (CMO) establishing the procedures that would govern this case. See CMO, Boumediene v. Bush, No. 04–1166(RJL) (D.D.C. Aug. 27, 2008). …
The Government claimed authority to detain the six men pursuant both to the AUMF [Pub.L. 107–40, § 2(a), 115 Stat. 224, 224 (2001)] and to the President’s inherent powers as Commander in Chief. …
The district court [granted habeas to each of the other five petitioners, but] denied [the appellant]’s petition because it determined “the Government has met its burden by providing additional evidence that sufficiently corroborates its allegations from this unnamed source that [the appellant] is an al-Qaida facilitator.” [F.Supp.2d 191] Id. at 198. The corroborative evidence provided by the Government is of three sorts: (1) evidence linking [the appellant] to al Qaeda, and specifically to a “senior al-Qaida facilitator”; (2) evidence of Bensayah’s history of travel “between and among countries using false passports in multiple names”; and (3) evidence creating “sufficient doubt as to [the appellant]’s credibility.” Id.
… Because it held [the appellant]’s detention was lawful based upon his support of al Qaeda, the court did not go on to consider whether he was a “member” of al Qaeda or whether his detention was lawful on the alternative ground that he was “part of” that organization.
There have been three developments since the district court’s decision. First, the Government has eschewed reliance upon a portion of the evidence that the “senior al-Qaida facilitator” with whom [the appellant] allegedly had contact was in fact a senior al Qaeda facilitator. Second, the Government has changed its position concerning the source and scope of its authority to detain [the appellant]. Whereas the Government had previously claimed authority to detain [the appellant] based upon both the AUMF and the President’s constitutional authority as Commander in Chief, it now relies solely upon the AUMF. Third, the Government has abandoned its argument that [the appellant] is being detained lawfully because of the support he rendered to al Qaeda – the sole basis upon which the district court denied [the appellant]’s petition. The Government now contends that [the appellant]’s detention is lawful only because he was “part of” al Qaeda.
… [W]e have made clear elsewhere that the AUMF authorizes the Executive to detain, at the least, any individual who is functionally part of al Qaeda. Barhoumi, 432 (detainee “was ‘part of an al-Qaida-associated force and therefore properly detained pursuant to the AUMF’”); Awad, at 11 (“Once [a petitioner is shown to be] ‘part of al Qaeda … the requirements of the AUMF [are] satisfied”); Al–Bihani, 590 F.3d at 872–74.
… [I]t is impossible to provide an exhaustive list of criteria for determining whether an individual is “part of” al Qaeda. That determination must be made on a case-by-case basis by using a functional rather than a formal approach and by focusing upon the actions of the individual in relation to the organization. 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; there may be other indicia that a particular individual is sufficiently involved with the organization to be deemed part of it,
see Awad, at 11 (“there are ways other than making a ‘command structure’ showing to prove that a detainee is ‘part of’ al Qaeda”), but the purely independent conduct of a freelancer is not enough.
The Government argues it is authorized by the AUMF to detain [the appellant] solely on the ground he was functionally a member or “part of” al Qaeda. The evidence upon which the district court relied in concluding [the appellant] “supported” al Qaeda is insufficient, however, to show he was part of that organization. Accordingly, we reverse the judgment of the district court and remand the case for the district court to hear such evidence as the parties may submit and to decide in the first instance whether [the appellant] was functionally part of al Qaeda.
[footnote in original omitted]
In the Al-Adahi case in July 2010, in which the government appealed a district court’s granting of a Guantánamo Bay detainee’s habeas corpus writ, the US Court of Appeals for the District of Columbia Circuit reversed the lower court’s decision and remanded for that court to deny the detainee’s petition for habeas corpus. The Court of Appeals stated:
[The defendant] filed his habeas corpus petition in 2005. In 2008 the Supreme Court ruled that despite statutes depriving the federal courts of jurisdiction to hear habeas petitions from Guantánamo detainees, the Suspension Clause of the Constitution at least preserved the writ as it existed in 1789. Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008).
[The defendant]’s habeas petition presented the question whether he was part of al-Qaida and therefore justifiably detained under the Authorization for Use of Military Force [AUMF], Pub.L. No. 107–40, 115 Stat. 224 (2001). The district court considered the [petition] … The court found “no reliable evidence in the record that Petitioner was a member of al-Qaida” and ruled that he should be released. Al-Adahi v. Obama, No. 05–280, 2009 WL 2584685 *16 (D.D.C. Aug.21, 2009) (“Mem.Op.”). The government brought this appeal and [the defendant] cross-appealed.
The Authorization for Use of Military Force empowers the President “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.” Pub.L. No. 107–40, § 2(a). “[A]ll necessary and appropriate force” includes the power to capture and detain those described in the congressional authorization. Hamdi v. Rumsfeld, 542 U.S. 507, 519, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004). The government may therefore hold at Guantánamo and elsewhere those individuals who are “part of” al-Qaida, the Taliban, or associated forces. See Awad v. Obama, 608 F.3d 1, 11 (D.C.Cir.2010); Al–Bihani v. Obama, 590 F.3d 866, 872, 874–75 (D.C.Cir.2010).
Whether [the defendant] fit that description was and is the ultimate issue. The obvious preliminary question is what sort of factual showing does the government, or the detainee, have to make? In this court the question is open. Al–Bihani held that the government does not have to prove the legality of detention “beyond a reasonable doubt” or by “clear and convincing evidence.” See 590 F.3d at 878; see also Awad, 608 F.3d at 10–11. Al–Bihani also decided that the preponderance-of-the-evidence standard is constitutionally permissible. 590 F.3d at 878. But we have yet to decide whether that standard is required. Id. at 878 n. 4; see also Awad, 608 F.3d at 11 n. 2.
The district judge in this case adopted the preponderance standard. Mem. Op., 2009 WL 2584685 at *1. Other district judges in our circuit have done the same. See, e.g., Awad, 608 F.3d at 3. Their rationale is unstated. After Boumediene, the district judges met in executive session and decided to coordinate proceedings in Guantánamo habeas cases. See In re Guantánamo Bay Detainee Litig., 577 F.Supp.2d 309, 310 (D.D.C.2008). On November 6, 2008, the coordinating judge issued a Case Management Order. In re Guantánamo Bay Detainee Litig., Misc. No. 08–442, 2008 WL 4858241 (D.D.C. Nov. 6, 2008). The Order stated, among other things, that the government should bear the burden of proving by a preponderance of the evidence that the petitioner’s detention is lawful. Order at 4. In support, the Order cited Boumediene. But Boumediene held only that the “extent of the showing required of the Government in these cases is a matter to be determined.” 553 U.S. 723, 128 S.Ct. 2229, 2271, 171 L.Ed.2d 41
… [W]e doubt, for the reasons stated above, that the Suspension Clause requires the use of the preponderance standard, we will not decide the question in this case. As we did in Al-Bihani, we will assume arguendo that the government must show by a preponderance of the evidence that [the defendant] was part of al-Qaida. 590 F.3d at 878 & n. 4.
… [T]he district court wrongly “required each piece of the government’s evidence to bear weight without regard to all (or indeed any) other evidence in the case. This was a fundamental mistake that infected the court’s entire analysis.” Br. of Appellants at 42.
Having tossed aside the government’s evidence, one piece at a time, the court came to the manifestly incorrect – indeed startling – conclusion that “there is no reliable evidence in the record that Petitioner was a member of al-Qaida and/or the Taliban.” Mem. Op. at *16. When the evidence is properly considered, it becomes clear that [the defendant] was – at the very least –more likely than not a part of al-Qaida. And that is all the government had to show in order to satisfy the preponderance standard. Awad, 608 F.3d at 10;
… [T]he district court clearly erred in its treatment of the evidence and in its view of the law. Cf. Barhoumi v. Obama
, 609 F.3d 416, 423–24 (D.C.Cir.2010); Awad
, 608 F.3d at 10. The court’s conclusion was simply not a “permissible view [ ] of the evidence.” See Anderson v. City of Bessemer City, N.C.,
470 U.S. 564, 573–74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). And it reached this conclusion through a series of legal errors, as we have discussed. … In all there can be no doubt that [the defendant] was more likely than not part of al-Qaida. We therefore reverse and remand with instructions to the district court to deny [the defendant]’s petition for a writ of habeas corpus
In the Salahi case in November 2010, in which the US Government appealed a decision of the district court that had granted a writ of habeas corpus to the appellee – a detainee at Guantánamo Bay, Cuba – the US Court of Appeals for the District of Columbia vacated the ruling and remanded the case to the District Court for further factual findings. The Court stated:
Enacted just seven days after the September 11 terrorist attacks, the Authorization for Use of Military Force (AUMF) empowers the President of the United States 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.” Pub. L. No. 107–40, § 2(a), 115 Stat. 224, 224 (2001) … We have held that the “necessary and appropriate force” authorized by the AUMF includes the power to detain individuals who are “part of” al-Qaida, the organization that perpetrated the September 11 attacks. See Bensayah, 610 F.3d at 724–25.
After reviewing all the evidence, the district court … concluded that [the appellant] “was an al-Qaida sympathizer” and “perhaps a ‘fellow traveler.’” [Salahi v. Obama, 710 F.Supp.2d]. at 16. It also found that [the appellant] “was in touch with al-Qaida members” and provided them with “sporadic support.” Id. Nonetheless, the court concluded, Salahi was not “part of” al-Qaida at the time of his capture because the government had failed to prove that after leaving Afghanistan in 1992, he continued receiving and executing orders within al-Qaida’s “command structure.” Id. at 5, 15–16.
[T]he relevant inquiry is whether [the appellant] was “part of” al-Qaida when captured.
[T]the district court’s approach [to determining whether an individual is part of al-Qaida] is inconsistent with our recent decisions in Awad and Bensayah, which were issued after the district court granted [the appellant]’s habeas petition. These decisions make clear that the determination of whether an individual is “part of” al-Qaida “must be made on a case-by-case basis by using a functional rather than a formal approach and by focusing upon the actions of the individual in relation to the organization.” Bensayah, 610 F.3d at 725. Evidence that an individual operated within al-Qaida’s command structure is “sufficient but is not necessary to show he is ‘part of’ the organization.” Id.; see also Awad, 608 F.3d at 11. “[T]here may be other indicia that a particular individual [was] sufficiently involved with the organization to be deemed part of it.” Bensayah, 610 F.3d at 725. …
As we explained in Bensayah, however, “the purely independent conduct of a freelancer is not enough” to establish that an individual is “part of” al-Qaida. 610 F.3d at 725.
Because the district court, lacking the guidance of these later decisions, looked primarily for evidence that [the appellant] participated in al-Qaida’s command structure, it did not make definitive findings regarding certain key facts necessary for us to determine as a matter of law whether [the appellant] was in fact “part of” al-Qaida when captured. See Barhoumi, 609 F.3d at 423
[W]e think it appropriate to reiterate this Court’s admonition in Al-Adahi [Al-Adahi v. Obama, 613 F.3d 1102], also decided after the district court issued its decision in this case, that a court considering a Guantánamo detainee’s habeas petition must view the evidence collectively rather than in isolation. [Id at 1105–06. Merely because a particular piece of evidence is insufficient, standing alone, to prove a particular point does not mean that the evidence “may be tossed aside and the next [piece of evidence] may be evaluated as if the first did not exist.” Id. at 1105. The evidence must be considered in its entirety in determining whether the government has satisfied its burden of proof.
The President seeks to detain [the appellant] on the grounds that he was “part of” al-Qaida at the time he was captured. Because additional fact-finding is required to resolve that issue under this circuit’s evolving case law, we vacate and remand for further proceedings consistent with this opinion.
In August 2003, the US State Department issued a written response to an opinion issued by the United Nations Commission on Human Rights (UNCHR), dated 8 May 2003, that had referred to a UNCHR Working Group report on Arbitrary Detention, dated 8 January 2003, which was critical of US policy regarding detainees at Guantánamo Bay, Cuba. In disagreeing with the UNCHR reports, and noting that the competence of the Working Group did not extend to the laws and customs of war, the US response stated:
The laws and customs of war are the applicable law in armed conflict. The Opinion and Communication ignore this crucial juridical context, suggesting that the detainees are entitled to judicial review or enjoy the right to resort to the courts. The Opinion, however, presents no legal support for the novel proposition that detained enemy combatants have any rights under the law of armed conflict to have their detention reviewed in a human rights forum or to have access to the courts of the Detaining Power to challenge their detention during the course of ongoing conflict.
It is the view of the United States Government that we cannot have an international legal system in which honorable soldiers who abide by the law of armed conflict and are captured on the battlefield may be detained and held until the end of a war without access to courts or other benefits claimed in the Opinion, but terrorist combatants who violate the law of armed conflict must be given special privileges or released and allowed to continue their belligerent, unlawful or terrorist activities. Such a legal regime would signal to the international community that it is acceptable for armies to behave like terrorists.
Some have erroneously claimed that the United States is violating domestic and international laws that prohibit the indefinite detention of individuals without trial. This claim is contrary to the well-established and broad authority of a country to detain enemy combatants under the laws and customs of war for the duration of hostilities.
Individuals detained at Guantánamo are enemy combatants captured in the course of ongoing hostilities or directly acting in support of a hostile armed force engaged in an ongoing armed conflict. As such, they are being held in accordance with the laws and customs of war, which permit the United States to capture and detain enemy combatants to prevent their re-engaging in the ongoing armed conflict.
The United States has made it clear that the detainees are unlawful combatants – a legal status that has long been recognized under international law – who may be detained at least for the duration of hostilities. See, e.g., Ingrid Detter, The Law of War 148 (2000) (“Unlawful combatants … though they are a legitimate target for any belligerent action, are not, if captured, entitled to any prisoner of war status.”). Individuals detained at Guantánamo include a number of senior Al Qaida operatives or others committed to killing Americans and others. The United States continues to fight against enemy combatants who are planning and conducting attacks against it.
The detention of an enemy combatant is not an act of punishment but one of security and military necessity. It serves the important purpose of preventing an enemy combatant from continuing to fight against us. There is no law requiring a detaining power to prosecute enemy combatants on some form of charge or release them prior to the end of hostilities. Likewise, under the laws and customs of war, detained enemy combatants have no right of access to counsel or the courts to challenge their detention. Should a detainee be charged with a criminal offense, he would have the right to counsel and applicable fundamental procedural safeguards.
It is also important to note that the United States has no interest in detaining enemy combatants longer than necessary. On an ongoing basis, we are constantly reviewing the continued detention of each enemy combatant, based on security, war crime involvement, and intelligence concerns. This process has resulted in the release of, to date, 64 individuals. These individuals are required to sign an agreement that they will not take up arms against the United States or its allies. Additionally, some enemy combatants have been transferred to their countries of nationality for continued detention.
[emphasis in original]
In 2005, in its second periodic report to the Committee against Torture, the United States stated:
The United States and its coalition partners are engaged in a war against al-Qaida, the Taliban, and their affiliates and supporters. There is no question that under the law of armed conflict, the United States has the authority to detain persons who have engaged in unlawful belligerence until the cessation of hostilities. Like other wars, when they start we do not know when they will end. Still, we may detain combatants until the end of the war.
In December 2005, the US Secretary of State, prior to her departure for Europe, made a detailed statement regarding US rendition, detention, interrogation and interrogation practices, including US obligations under the 1985 Convention against Torture. This stated in part:
We consider the captured members of al-Qaida and its affiliates to be unlawful combatants who may be held, in accordance with the law of war, to keep them from killing innocents.
For decades, the United States and other countries have used “renditions” to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice.
In some situations a terrorist suspect can be extradited according to traditional judicial procedures. But there have long been many other cases where, for some reason, the local government cannot detain or prosecute a suspect, and traditional extradition is not a good option. In those cases the local government can make the sovereign choice to cooperate in a rendition. Such renditions are permissible under international law and are consistent with the responsibilities of those governments to protect their citizens.
Renditions take terrorists out of action, and save lives.
In conducting such renditions, it is the policy of the United States, and I presume of any other democracies who use this procedure, to comply with its laws and comply with its treaty obligations, including those under the Convention Against Torture. Torture is a term that is defined by law. We rely on our law to govern our operations. The United States does not permit, tolerate, or condone torture under any circumstances.
International law allows a state to detain enemy combatants for the duration of hostilities. Detainees may only be held for an extended period if the intelligence or other evidence against them has been carefully evaluated and supports a determination that detention is lawful. The U.S. does not seek to hold anyone for a period beyond what is necessary to evaluate the intelligence or other evidence against them, prevent further acts of terrorism, or hold them for legal proceedings.
In March 2006, the US Government issued a written response to a report produced by a group of five special rapporteurs to the United Nations Commission on Human Rights, dated 16 February 2006, which was critical of US policy regarding detainees at Guantánamo Bay, Cuba. The US Government’s response stated in part:
The law of armed conflict governs the conduct of armed conflict and related detention operations, and permits lawful and unlawful enemy combatants to be detained until the end of active hostilities without charges, trial, or access to counsel.
• Combatants may be detained to prevent them from taking up arms against the United States.
• This is the principal reason for Guantánamo detention, an important point which the Report questions and disregards.
• It is also the reason why the United States has given the International Committee of the Red Cross, rather than human rights rapporteurs, unimpeded access to the detainees at Guantánamo.
Prisoners of war may be detained until the end of active hostilities, and in recognition of battlefield conditions, investigation and prosecution of combatant detainees is not required unless they are charged with a crime. The Report does not question this well-established precept of international humanitarian law, yet nevertheless assails the United States for applying a similar detention regime to unlawful combatants, who are not eligible for POW status due to their failure to heed the basic law of war. The approach called for by the Report is unprecedented, and indeed would turn international humanitarian law on its head by affording greater protections to unlawful combatants than to lawful ones. This is not, and cannot be, the law. To the contrary, it is the view of the United States Government that we cannot have an international legal system in which honorable soldiers who abide by the law of armed conflict and are captured on the battlefield may be detained and held until the end of a war without access to courts or counsel, but terrorist combatants who violate those very laws must be given special privileges or released and allowed to continue their belligerent or terrorist activities. Such a legal regime would signal to the international community that it is acceptable for armies to behave like terrorists.
In summary, the law of war applies to the conduct of war and related detention operations. The law of war allows the United States – and any other country engaged in armed conflict – to hold enemy combatants without charges or access to counsel for the duration of active hostilities. That is not to say that all detainees will be held until the overall end of hostilities. The United States – not because of any international law obligation – voluntarily has implemented measures to minimize the duration of detention. Our fight against Al Qaida is different from traditional armed conflicts in that it is not a state-to-state conflict, in which there generally is an identifiable conclusion of hostilities, after which each side releases those combatants it has detained. Sensitive to this reality, the United States evaluates each Guantánamo detainee individually, to determine whether he no longer poses a serious danger of returning to hostilities against us. This concept of an individual analysis has some support in historical practices that contemplate parole, as well as releases of enemy combatants held for extended periods, based on individualized determinations that the combatant does not present a continuing threat.
Detention is not an act of punishment but of security and military necessity. It serves the purpose of preventing combatants from continuing to take up arms against the United States. These are the long-standing, applicable rules of the law of war.
In September 2006, the US President spoke before an invited audience at the White House to announce the creation of new military commissions to try suspected terrorists, during which he also announced the transfer of 14 detainees from the Central Intelligence Agency (CIA) detention program (thus publicly revealing that such a program existed) into military custody:
To win the war on terror, we must be able to detain, question, and, when appropriate, prosecute terrorists captured here in America, and on the battlefields around the world.
After the 9/11 attacks, our coalition launched operations across the world to remove terrorist safe havens, and capture or kill terrorist operatives and leaders. Working with our allies, we’ve captured and detained thousands of terrorists and enemy fighters in Afghanistan, in Iraq, and other fronts of this war on terror. These enemy – these are enemy combatants, who were waging war on our nation. We have a right under the laws of war, and we have an obligation to the American people, to detain these enemies and stop them from rejoining the battle.
Most of the enemy combatants we capture are held in Afghanistan or in Iraq, where they’re questioned by our military personnel. Many are released after questioning, or turned over to local authorities – if we determine that they do not pose a continuing threat and no longer have significant intelligence value. Others remain in American custody near the battlefield, to ensure that they don’t return to the fight.
In some cases, we determine that individuals we have captured pose a significant threat, or may have intelligence that we and our allies need to have to prevent new attacks. Many are al Qaeda operatives or Taliban fighters trying to conceal their identities, and they withhold information that could save American lives. In these cases, it has been necessary to move these individuals to an environment where they can be held secretly [sic], questioned by experts, and – when appropriate – prosecuted for terrorist acts.
[I]n addition to the terrorists held at Guantánamo, a small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency. This group includes individuals believed to be the key architects of the September the 11th attacks, and attacks on the USS Cole, an operative involved in the bombings of our embassies in Kenya and Tanzania, and individuals involved in other attacks that have taken the lives of innocent civilians across the world. These are dangerous men with unparalleled knowledge about terrorist networks and their plans for new attacks. The security of our nation and the lives of our citizens depend on our ability to learn what these terrorists know.
Many specifics of this program, including where these detainees have been held and the details of their confinement, cannot be divulged. Doing so would provide our enemies with information they could use to take retribution against our allies and harm our country. I can say that questioning the detainees in this program has given us information that has saved innocent lives by helping us stop new attacks – here in the United States and across the world. Today, I’m going to share with you some of the examples provided by our intelligence community of how this program has saved lives; why it remains vital to the security of the United States, and our friends and allies; and why it deserves the support of the United States Congress and the American people.
This program has been subject to multiple legal reviews by the Department of Justice and CIA lawyers; they’ve determined it complied with our laws. This program has received strict oversight by the CIA’s Inspector General. A small number of key leaders from both political parties on Capitol Hill were briefed about this program. All those involved in the questioning of the terrorists are carefully chosen and they’re screened from a pool of experienced CIA officers. Those selected to conduct the most sensitive questioning had to complete more than 250 additional hours of specialized training before they are allowed to have contact with a captured terrorist.
Some may ask: Why are you acknowledging this [CIA] program now? There are two reasons why I’m making these limited disclosures today. First, we have largely completed our questioning of the men – and to start the process for bringing them to trial, we must bring them into the open. Second, the Supreme Court’s recent decision Hamdan v. Rumsfeld, 548 US 557 (2006)] has impaired our ability to prosecute terrorists through military commissions, and has put in question the future of the CIA program. In its ruling on military commissions, the Court determined that a provision of the Geneva Conventions known as “Common Article Three” applies to our war with al Qaeda. This article includes provisions that prohibit “outrages upon personal dignity” and “humiliating and degrading treatment.” The problem is that these and other provisions of Common Article Three are vague and undefined, and each could be interpreted in different ways by American or foreign judges. And some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act – simply for doing their jobs in a thorough and professional way.
This is unacceptable. Our military and intelligence personnel go face to face with the world’s most dangerous men every day. They have risked their lives to capture some of the most brutal terrorists on Earth. And they have worked day and night to find out what the terrorists know so we can stop new attacks. America owes our brave men and women some things in return. We owe them their thanks for saving lives and keeping America safe. And we owe them clear rules, so they can continue to do their jobs and protect our people.
So today, I’m asking Congress to pass legislation that will clarify the rules for our personnel fighting the war on terror. First, I’m asking Congress to list the specific, recognizable offenses that would be considered crimes under the War Crimes Act – so our personnel can know clearly what is prohibited in the handling of terrorist enemies. Second, I’m asking that Congress make explicit that by following the standards of the Detainee Treatment Act our personnel are fulfilling America’s obligations under Common Article Three of the Geneva Conventions. Third, I’m asking that Congress make it clear that captured terrorists cannot use the Geneva Conventions as a basis to sue our personnel in courts – in U.S. courts. The men and women who protect us should not have to fear lawsuits filed by terrorists because they’re doing their jobs.
In 2007, in its comments on the concluding observations of the Human Rights Committee on the United States’ second and third periodic reports, the United States stated in response to a recommendation concerning the practice of secret detention:
The United States is engaged in an armed conflict with al Qaida, the Taliban, and their supporters. As part of this conflict, the United States captures and detains enemy combatants, and is entitled under the law of war to hold them until the end of hostilities. The law of war, and not the Covenant [1966 International Covenant on Civil and Political Rights], is the applicable legal framework governing these detentions.
In certain rare cases, the United States moves enemy combatants to secret locations. As the President of the United States stated in a September 6, 2006 speech, “Questioning the detainees in this program has given us information that has saved innocent lives by helping us stop new attacks – here in the United States and across the world.” …
All of the detainees who were in this secret interrogation program as of September 6, 2006, were moved to the Department of Defense detention facility at Guantánamo Bay.
[footnote in original omitted]
In February 2008, in a statement to Central Intelligence Agency (CIA) employees concerning the past use of Diego Garcia, the Director of the CIA stated:
The British Government announced today that the United States recently provided information on rendition flights through Diego Garcia – a UK territory in the Indian Ocean – that contradicted earlier data from us. Our government had told the British that there had been no rendition flights involving their soil or airspace since 9/11. That information, supplied in good faith, turned out to be wrong. In fact, on two different occasions in 2002, an American plane with a detainee aboard stopped briefly in Diego Garcia for refueling. Neither of those individuals was ever part of CIA’s high-value terrorist interrogation program. One was ultimately transferred to Guantánamo, and the other was returned to his home country. These were rendition operations, nothing more. There has been speculation in the press over the years that CIA had a holding facility on Diego Garcia. That is false. There have also been allegations that we transport detainees for the purpose of torture. That, too, is false. …
In late 2007, CIA itself took a fresh look at records on rendition flights. This time, the examination revealed the two stops in Diego Garcia. The refueling, conducted more than five years ago, lasted just a short time. But it happened. That we found this mistake ourselves, and that we brought it to the attention of the British Government, in no way changes or excuses the reality that we were in the wrong.
In 2009, in further comments to the Human Rights Committee on that committee’s concluding observations of the United States’ second and third periodic reports, the United States stated:
[O]n January 22, 2009, President Obama signed three executive orders relating to U.S. detention and interrogation policies broadly and the Guantánamo Bay detention facility specifically. Section 4 of Executive Order 13491 (“Ensuring Lawful Interrogations”) instructs the CIA to close any detention facilities that it operates and forbids the CIA from operating any detention facilities in the future.
In March 2010, the US State Department’s legal adviser stated:
With respect to detention, as you know, the last Administration’s detention practices were widely criticized around the world, and as a private citizen, I was among the vocal critics of those practices. This Administration and I personally have spent much of the last year seeking to revise those practices to ensure their full compliance with domestic and international law … [including] by ensuring that all detained individuals are being held pursuant to lawful authorities.
… The President ordered CIA “black sites” closed and directed the Secretary of Defense to conduct an immediate review – with two follow-up visits by a blue ribbon task force of former government officials – to ensure that the conditions of detention at Guantánamo fully comply with Common Article 3 of the  Geneva Conventions.
b. Legal Authority to Detain
Some have asked what legal basis we have for continuing to detain those held on Guantánamo and at Bagram. But as a matter of both international and domestic law, the legal framework is well-established. As a matter of international law, our detention operations rest on three legal foundations. First, we continue to fight a war of self-defense against an enemy that attacked us on September 11, 2001, and before, and that continues to undertake armed attacks against the United States. Second, in Afghanistan, we work as partners with a consenting host government. And third, the United Nations Security Council has, through a series of successive resolutions, authorized the use of “all necessary measures” by the NATO countries constituting the International Security Assistance Force (ISAF) to fulfill their mandate in Afghanistan. As a nation at war, we must comply with the laws of war, but detention of enemy belligerents to prevent them from returning to hostilities is a well-recognized feature of the conduct of armed conflict, as the drafters of Common Article 3 and  Additional Protocol II recognized and as our own Supreme Court recognized in Hamdi v. Rumsfeld.
Second, unlike the last administration, as a matter of international law, this Administration has expressly acknowledged that international law informs the scope of our detention authority. Both in our internal decisions about specific Guantánamo detainees, and before the courts in habeas cases, we have interpreted the scope of detention authority authorized by Congress in the AUMF [The Authorization for the Use of Military Force (2001)] as informed by the laws of war. Those laws of war were designed primarily for traditional armed conflicts among states, not conflicts against a diffuse, difficult-to-identify terrorist enemy, therefore construing what is “necessary and appropriate” under the AUMF requires some “translation,” or analogizing principles from the laws of war governing traditional international conflicts.
Some commentators have criticized our decision to detain certain individuals based on their membership in a non-state armed group. But as those of you who follow the Guantánamo habeas litigation know, we have defended this position based on the AUMF, as informed by the text, structure, and history of the Geneva Conventions and other sources of the laws of war. Moreover, while the various judges who have considered these arguments have taken issue with certain points, they have accepted the overall proposition that individuals who are part of an organized armed group like al-Qaeda can be subject to law of war detention for the duration of the current conflict. In sum, we have based our authority to detain not on conclusory labels, like “enemy combatant,” but on whether the factual record in the particular case meets the legal standard. This includes, but is not limited to, whether an individual joined with or became part of al-Qaeda or Taliban forces or associated forces, which can be demonstrated by relevant evidence of formal or functional membership, which may include an oath of loyalty, training with al-Qaeda, or taking positions with enemy forces. Often these factors operate in combination. While we disagree with the International Committee of the Red Cross on some of the particulars, our general approach of looking at “functional” membership in an armed group has been endorsed not only by the federal courts, but also is consistent with the approach taken in the targeting context by the ICRC in its recent study on Direct Participation in Hostilities (DPH).
[emphasis in original]
In May 2010, the US President issued the 2010 National Security Strategy, which stated:
Legal Aspects of Countering Terrorism
. The increased risk of terrorism necessitates a capacity to detain and interrogate suspected violent extremists, but that framework must align with our laws to be effective and sustainable. … For detainees who cannot be prosecuted – but pose a danger to the American people – we must have clear, defensible, and lawful standards. We must have fair procedures and a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. And keeping with our Constitutional system, it will be subject to checks and balances. The goal is an approach that can be sustained by future Administrations, with support from both political parties and all three branches of government.
In November 2010, in responding to the recommendations made by the Working Group of the UN Human Rights Council’s Universal Periodic Review of US human rights records, the US Department of State’s legal adviser stated:
Most of these recommendations referred to our country’s continuing armed conflicts in Afghanistan, Iraq, and against Al Qaeda and associated forces. The Obama Administration abides by all applicable law in these armed conflicts, including laws respecting … detention. … We defend the legality under the laws of war of using detention to remove adversaries from the conflict.