Why Judge Bates gets it wrong in Hamlily v. Obama

On Tuesday, the federal district court in D.C. released its decision in Hamlily v. Obama, a habeas corpus action by detainees at Guantanamo Bay challenging the government’s detention authority.  In his opinion, Judge John Bates in part upheld and in part rejected the Obama administration’s proposed standard for detention. 

Since taking office, the Obama administration has modified (some would say “refined”) the Bush administration’s position on the power to detain individuals in the war on terrorism.  Eschewing the term “enemy combatant” and any reliance on the President’s independent powers as Commander-in-Chief, the Obama administration claims authority under the 2001 congressional Authorization for Use of Military Force (“AUMF”) “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” (emphases added).  Judge Bates held that the law of war permits detention only of those who are “part of” enemy armed forces or those who have “committed a belligerent act” (i.e., civilian unlawful combatants that directly participate in hostilities), but not of those who “substantially support” enemy armed forces or who “directly suppor[t] hostilities.”  I think Judge Bates’ holding is wrong for three reasons:  (1) the law of war permits detention of individuals who have “substantially supported” enemy armed forces, (2) Judge Bates’ decision creates perverse results, and (3) Judge Bates ends up adopting the Obama administration’s position anyway.

1. The law of war permits detention of individuals who have “substantially supported” enemy armed forces.

The notion of  ”substantial support” is, of course, not self-defining, but the law of war plainly permits detention of individuals who are not members of (“part of”) enemy armed forces but who nevertheless “support” those forces.  For example, in international armed conflicts (conflicts between nation-states), the law of war authorizes detention of “[p]ersons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces” (3d Geneva Conv’n, Art. 4(4)).  And it is a basic tenet of the law of war that whatever is permissible in an international armed conflict is likewise permissible in a non-international armed conflict (the paradigm applicable to the war on terrorism).  Thus, in the conflict against al Qaeda, the goverment may detain individuals who, in analogous situations in international armed conflicts, would be deemed to “support” an enemy’s armed forces without necessarily being members thereof.

In rejecting the “substantial support” standard, the Hamlily decision barely discusses relevant sources on the law of war such as the Geneva Conventions.  This is in part because the government, in litigating the case, offered no “definitive justification” for its invocation of the standard.  Instead, it argued (rather weakly and only at oral argument) that the standard “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.”  Judge Bates stated that this claimed authority “sweeps so broadly [that it] is simply beyond what the law of war will support.”  While it is debatable that “mere” financiers may be subject to detention, Judge Bates has thrown out the baby with the bathwater.  It is, in fact, his decision that sweeps too broadly, for the law of war would clearly support a “substantial support” standard, within limits.

2. Judge Bates’ decision creates perverse results.

Judge Bates held that the law of war permits detention of individuals who are “part of” an enemy’s armed forces but not of those who “substantially suppor[t]” such forces.  In so holding, however, Judge Bates sustained the government’s position that under certain circumstances, “individuals who provide substantial support to al-Qaida forces…may properly be deemed part of al-Qaida itself.”  In other words, an individual’s “substantial support” is relevant evidence for determining whether he is, in Judge Bates’ words, ”functionally a ‘part of’ al Qaeda.”  Cutting through the jargon, this means that an individual who is not part of al Qaeda may nevertheless be ”part of” al Qaeda.   This is not only confusing and lacking in elegance; it actually creates perverse results.

Under the law of war, members of enemy armed forces may be targeted with lethal force simply by virtue of their membership status.  By contrast, individuals who are not members of the enemy armed forces may not be subjected to lethal force, even if they render substantial assistance to combat or military operations generally (provided, of course, that they do not directly participate in hostilities).  Put otherwise, such individuals are not valid military targets.  Judge Bates threatens to blur the line between these categories in the context of detention, such that non-members of enemy armed forces may be deemed “functionally a ‘part of’” those forces.  This standard of functional membership would permit use of lethal force against individuals who are otherwise protected under the law of war.

Together with the first point above, this means that Judge Bates’ holding is both underinclusive and overinclusive.  It rejects detention authority plainly permitted by the law of war but would allow lethal targeting in ways plainly contrary to the law of war.

3.  Judge Bates ends up adopting the Obama administration’s position anyway.

The final point follows from the second and should be obvious.  It is that Judge Bates adopts the Obama administration’s position anyway by transmuting a “substantial support” standard into a watered-down ”part of” standard.  In fact, I would wager that if the government had merely employed a different, though synonymous, verbal formulation, it may have succeeded at trial.  For example, Judge Bates writes, “[I]f the evidence demonstrates that an individual did not identify himself as a member, but…rendered frequent substantive assistance to al Qaeda, whether operational, financial or otherwise, then a court might conclude that he was ‘part of’ the organization.”  It is not clear to me where “frequent substantive assistance” and “substantial support” differ.  If, as Judge Bates contends, the law of war prohibits detention of individuals who, without more, ”substantially suppor[t]” enemy armed forces, it seems odd that the law would nevertheless supply a definition for armed forces membership which included — and, indeed, appeared coterminous with – the notion of “substantial support.”  In a roundabout way, then, Judge Bates ends up adopting the government’s position wholesale.  But he does so in a way that sows considerable doubt and confusion.

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