Detention, the AUMF, and the Bush Administration -- Correcting the Record

It is now well known that the Obama administration has embraced almost all of the Bush administration’s counterterrorism policies without substantial modification.  One such policy is military detention without trial.  The Obama administration has argued, however, that its legal rationale for military detention is different than the Bush administration legal rationale.  State Department Legal Advisor Harold Koh described these differences in a speech last May:

[L]et me note two important differences from the legal approach of the last Administration. First, as a matter of domestic law, the Obama Administration has not based its claim of authority to detain those at GITMO and Bagram on the President’s Article II authority as Commander-in-Chief. Instead, we have relied on legislative authority expressly granted to the President by Congress in the 2001 AUMF.
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 Guantanamo detainees, and before the courts in habeas cases, we have interpreted the scope of detention authority authorized by Congress in the AUMF as informed by the laws of war.

I believe this statement is right in one respect, wrong in another, and misleading in a third.  It right to say that the Bush administration relied on its Article II power for detention and the Obama administration did not.  This point is less significant than it seems, because the Obama administration has not rejected the argument either, and is likely relying on it in other contexts.  The Koh statement is wrong to say that the Bush administration did not rely on the international laws of war to inform the scope of its detention authority.  It did, always.  And it is misleading to the extent that it implies that the Bush administration failed to rely on the AUMF – the congressional Authorization to Use Military Force, enacted on September 14, 2001 – for its detention authority.  It did so from the beginning, and placed more reliance on the AUMF as time went one.
My claim is not that detention standards were in fact the same in 2002 as in 2009.  They were not.  It is well known, and true, that over the course of those seven years, the Bush administration steadily tightened detention standards as a result of press scrutiny, internal Executive branch reforms, congressional statutes like the Detainee Treatment Act, and judicial pushback.  But the Obama administration has claimed that when it came in office, it established “important differences from the legal approach” of the Bush administration.  I do not think that dropping the Article II argument was important, and I do not think that relying on the AUMF and the laws of war were differences.
In its first (and most aggressive) brief in the Fourth Circuit concerning the detention of Yasser Hamdi, in June 2002, the Bush administration argued that its authority to detain was grounded in both Article II and the AUMF:

The challenged exercise of authority falls within the President's core war powers, comes with the statutory authorization of Congress, and directly implicates vital national security interests in defending the Nation against an unprincipled, unconventional, and savage enemy. . . .
This case directly involves the President’s core functions as Commander in Chief in wartime: the capture, detention, and treatment of the enemy and the collection and evaluation of intelligence vital to national security.  Furthermore, the President here is acting with the added measure of the express statutory backing of Congress.  See Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-637 & n.2 (1952) (Jackson, J., concurring).

This early brief also relied on the international laws of war.  In support of its argument that “the United States military may seize and detain enemy combatants, or other belligerents, at least for the duration of a conflict,” the brief cited Quirin and its authorities, which include a dozen international law sources, as well as Oppenheim’s international law treatise and Rosas’s treatise on prisoners of war.
When the Hamdi case reached the Supreme Court, in 2004, the Bush administration argued for detention authority based on its Article II powers and on the AUMF:  "The challenged wartime detention falls squarely within the Commander in Chief’s war powers; Hamdi’s detention is bolstered by, and by no means contrary to, the actions of Congress. . . . [T]he classic wartime detention at issue [here] comes with the express statutory backing of Congress."  Moreover, throughout the brief, the Bush administration relied on the international laws of war to inform the scope of its detention authority.  To take one of many examples, it argued that “[i]t is settled under the law of war that the military’s authority to detain individuals extends to non-combatants who enter the theater of battle with the enemy force . . . ."
The Supreme Court upheld the government’s detention authority.  The plurality in Hamdi did not reach the Article II argument because, as it explained, "we agree with the Government’s alternative position, that Congress has in fact authorized Hamdi’s detention, through the AUMF."  Like the government’s brief, the plurality relied heavily on Quirin, the international authorities cited in Quirin, and other international law sources to uphold the President’s detention authority.
The next major detention brief filed by the Bush administration, in 2005, was in the Fourth Circuit follow-up to the Supreme Court’s dismissal (on the same day as Hamdi) in Padilla.   The main argument in this brief was that Hamdi’s AUMF analysis, supplemented by Quirin, justified Padilla's detention.  The brief relied on Detter’s book, The Law of War, as the sole source for the proposition that “once an individual has engaged in armed conflict as part of enemy forces, he is subject to preventive detention as an enemy Combatant during the pendency of the relevant conflict, unless he has permanently laid down his weapons and returned to the civilian population.”  It further argued: “Long-accepted principles of the law of war confirm that Padilla’s detention is justified by his hostile acts abroad and that there is no legitimate basis for distinguishing between him and Hamdi for purposes of the President’s authority to detain.”  The brief preserved the argument that Article II provided an independent basis for detention, but it said that the Article II argument “need not be addressed here . . . because the AUMF supplies ample statutory foundation for Padilla's military detention.”
In the next major case, concerning the detention of Ali Saleh Kahlah al-Marri, the Bush administration's main argument in its 2006 brief before the Fourth Circuit was that “Al-Marri’s Detention Is Authorized by the AUMF.”  The brief argued: “Hamdi, followed by this Court in Padilla, makes clear that the AUMF constitutionally provided the President authority to detain enemy combatants for the duration of the current conflict.”  And it acknowledged that international law was relevant to the interpretation of the AUMF: “Preventive detention is such ‘a fundamental incident of waging war’ under ‘longstanding law-of-war principles’ that the Hamdi plurality found it authorized by the AUMF even though ‘the AUMF does not use specific language of detention.’”  The brief also made the Article II argument in the alternative, but maintained once again that in “view of the fact that the AUMF authorizes the President to detain al-Marri, the Court, as in Padilla, need not reach the issue of the President’s constitutional authority.”  The Bush administration’s subsequent brief in the al-Marri en banc proceeding made similar arguments.
In sum, Legal Advisor Koh is is wrong to imply that the Bush administration did not rely on the AUMF.  He is also wrong to say that the Bush administration did not rely on international law in informing the scope of its detention authority.  He is right to say that the Bush administration relied on its Article II powers, though he neglects to point out that it did so in the alternative or as a supplement, and decreasingly so over time, and that in the end it argued that courts need not reach the Article II issue because the AUMF sufficed.
Fast forward to the Obama administration’s legal rationale for detention.  In its first filing on the matter, in March 2009, Obama lawyers argued that the AUMF authorized the President to detain, without charge or trial, “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,” no matter where in the world they are captured.  The Obama formulation, which as far as I can tell has not changed materially ever since, was identical to Bush’s except for three things.
First, the Obama lawyers dropped the “enemy combatant” label.  This got a lot of news but has no legal significance.
Second, the Bush lawyers interpreted the AUMF to extend detention authority to those who “support” terrorist groups, while the Obama lawyers extended it only to those who “substantially support” these groups.  I agree with the New York Times that this definition is “not significantly different from the one used by the Bush administration,” and with Judge Walton that any differences with the Bush administration definition have “a minimal if not ephemeral character.”
Third, the Obama administration dropped the alternative or supplemental Article II argument.  One reason it could do this was that detention authority under the AUMF was by 2009 well established.  But the administration also did it, one assumes, in order to be able to claim that it was different than the Bush administration.  While this is a genuine difference in argumentation, I doubt it has legal significance.  As noted above, the Bush administration asserted beginning in 2005 that it was unnecessary for courts to rely on this argument; the AUMF alone sufficed.  Also, while the Obama lawyers have dropped the Article II argument, they have not, as far as I can tell, rejected it.  For reasons that Judge Kavanaugh noted in his Al-Bihani statement (pp. 78-86), Obama lawyers can thus still employ the Article II authorities should AUMF authorities ever run out.  And in some contexts, the Obama administration is probably using this Article II argument, or is at least preserving it.  (I will explain my reasons for thinking this in a subsequent post.)
I should note that the Obama administration strongly hinted in its brief in response to the al-Bihani rehearing petition that the laws of war inform not only the scope of the government’s authority to detain under the AUMF, but also the outer limits of AUMF detention authority.  (I say “hinted” rather than “argued” because the brief was not fully or clearly committed to the point, perhaps by design.)  This argument is one embraced by Judge Williams in the al-Bihani rehearing matter, and one with which I agree.  If the Obama administration does indeed embrace the “outer limit” role for the laws of war, it would not be a departure from the Bush administration, which never, as far as I can tell, addressed the issue.  Nor would it preclude it from making the Article II argument if its AUMF authorities run out.
A final note.  While the Obama administration’s legal rationale for military detention does not differ much from the Bush administration’s, the Obama administration has exercised these authorities somewhat differently.  For example, while the Obama administration never repudiated the detention rationale in Al-Marri (an alleged enemy combatant captured and detained inside the United States), it declined to push the rationale in the Supreme Court, and instead sent Al-Marri to civilian court for trial.  Similarly, it was more aggressive in releasing the Uighurs.  I am confident that there are more people in the Obama administration than its predecessor who shy away from Article II powers and who happily embrace international law limits.  I am sure there are other differences as well, and that these differences matter to detention policy.  My simple point has been to show that the supposed differences between the two administrations concerning the legal rationale for detention amount to very little.  This would not be remarkable except for the fact that some in the Obama administration have maintained so strenuously that these differences are large.