Under the Obama administration’s legal standard for holding detainees at Guantanamo Bay, individuals may be detained if they are “part of” or “substantially support” the Taliban, al Qaeda, or associated forces. The government has obtained preliminary judicial approval of its “part of” criterion but has had its “substantial support” criterion rejected. In Hamlily v. Obama, the U.S. district court in D.C. held that while the former was consistent with the laws of war, the latter was not.
Putting aside the probability that a “substantial support” standard is consistent with the laws of war — and notwithstanding the fact that the court in Hamlily appears to adopt that standard in a roundabout way anyway — another body of law relevant to the war on terrorism would support the Obama administration’s legal standard. In criminal law, an individual can be guilty of “aiding and abetting” a criminal offense if he (1) knowingly or intentionally (2) aids, assists, or facilitates the principal wrong. There is considerable debate over each of these elements (respectively, the mens rea and the actus reus). For example, some courts require only knowledge of the underlying criminal offense, while others require some higher degree of scienter, like intent to further the principal crime. Also, the level of assistance necessary to be an aider and abettor is often disputed. Must assistance be “substantial,” or may any form of assistance — or even inaction — suffice?
A good deal of ink is spilled over these elements. But the framework is there and is relevant to the modern war on terrorism. For example, 18 U.S.C. §§ 2339A and 2339B criminalize the knowing provision of “material support or resources” to terrorists or to designated foreign terrorist organizations. The definition of “material support or resources” is capacious and includes “financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel…, and transportation.”
In this light, what is most odd about Hamlily‘s rejection of the “substantial support” criterion is the anomalous disconnect it creates between the government’s ability to detain and its ability to prosecute. Under the above statutes, the government may prosecute individuals who are not members of terrorist organizations but who nevertheless “support” such organizations in some “material” way. However, in an odd twist, Hamlily bars the government from detaining individuals who, though not members of terrorist organizations, nevertheless “support” those organizations in some “substantial” way.
I can’t help but think that Hamlily (or its result) will be overturned on appeal (or on cert, if it gets that high). But the Obama administration would do well to rely not only (and not principally) on the laws of war to justify its detention policy. Substantive criminal law offers helpful alternative standards.
