Do the Laws of War Speak Clearly Enough on "Continuous Combat Function" To Justify a Narrow Reading of the AUMF?

A few comments on Toffiq al-Bihani’s cert. petition, which Larkin just posted. First, I am surprised by al-Bihani’s first argument.  He contends that the D.C. Circuit’s January 2010 decision in al-Bihani (involving Toffiq’s brother) erred in stating that the laws of war are irrelevant in determining the substantive scope of detention authority conferred by the AUMF, and that the D.C. Circuit’s refusal to grant en banc review in that case amounted to a “refus[al] to reconsider that position.” (p.9)  But as Steve Vladeck explained here, the en banc court did not in fact refuse to reconsider that claim, not in substance.  Rather, a majority of the circuit’s active judges wrote a statement accompanying the denial of en banc review in which they made clear that the original panel’s statements about the irrelevance of the laws of war was mere dicta.  Second, petitioner argues that the laws of war preclude a reading of the AUMF that would extend detention authority to those who are “part of” al Qaeda, absent proof that the person also was personally involved or intended to be personally involved in hostilities against the United States.  Specifically, petitioner claims that (i) he is a civilian rather than a combatant because, though he is an al Qaeda member who received military training, he has not directly participated in hostilities; and (ii) civilians who have not directly participated in hostilities cannot lawfully be detained under the laws of war.  I don’t agree with either premise, though I think both raise very complicated questions.  Let me explain, with an eye towards situating petitioner’s argument among several competing viewpoints, and also with an eye toward making the larger claim that the law is far less determinate in this area than is frequently suggested.  Please note that the discussion that follows assumes, as does the cert petition in question, that there is a relevant state of armed conflict. If we were speaking of an international armed conflict, petitioner’s situation would be quite like that of Gaetano Territo (an Italian Army private with American citizenship who brought a habeas action while held as a POW in California during WWII).  Territo was a mere laborer for the Italian Army, and seems not to have directly participated in any hostile acts.  Indeed, it seems that he fled his unit at the first opportunity when the Allies invaded Sicily.  He was a member of the enemy’s armed forces, however, and that status alone sufficed to justify his detention.  But of course we aren’t speaking of an international armed conflict here, but rather what has come to be viewed as a non-international armed conflict (at least since Hamdan). And there are at least five positions in play in that setting when it comes to who might be detained:            * First, one might argue that there simply is no military detention under the laws of war in that setting—i.e., any detention must be undertaken pursuant to domestic law authority alone.           * Second, one might argue that there is military detention in a NIAC solely for those who are captured while directly participating in hostilities.            * Third, one might argue that detention authority in a NIAC extends to any member of an organized armed group who has a “continuous combat function,” meaning recurrent direct participation.  This approach finds support in the ICRC’s DPH study, most notably, though it should be noted that opinions can vary under this heading regarding just what sort of conduct and how much repetition is needed in order to satisfy the “continuous combat function” test.  Petitioner, for example, throws in a footnote on p. 16 stating that bin Laden could properly be attacked (and thus presumably could have been detained) because he was a leader involved in combat planning, though he was not actually directly participating in hostilities at the time.           * Fourth, one might argue that detention authority in a NIAC extends to all members of an organized armed group, period, without regard to the continuous combat function concept.           * Fifth, one might argue that detention authority extends not just to all members but also at least some kinds of independent supporters of an armed group involved in a NIAC. This petition does not present the “support” question raised by the fifth category above, so set it aside.  And as noted above, the petitioner does ultimately seem to accept that at least some form of “continuous combat function” test should govern, so we can set aside the first and second categories as well.  The debate in this case thus boils down to whether detention should be limited to members of groups who have executed particular hostile acts, or whether instead detention should extend to some larger set of group members (in particular, those who have received military-style training and hence are functionally similar to a soldier in an international armed conflict, like Territo) or even to all group members period.  For my part, I would not find it necessary in this case to consider whether membership alone suffices, for a properly capacious understanding of “continuous combat function” should include the scenario in which a person joins an organized armed group and receives weapons training from it, as in this case.  To be sure, others could reasonably take a different view on that matter; the ICRC’s study supporting the existence of the continuous combat function concept takes a narrower view, for example.  But perhaps the most important point is the relative indeterminacy of these questions, which I think makes it very hard to argue that the AUMF can’t be construed to encompass this petitioner without violating the laws of war.