Section 1031 of the NDAA and Other Issues It Raises

I enjoyed your thoughtful comments in response to Steve Vladeck’s post, but I have to take issue with your characterization of how the detention authority in Section 1031 of the NDAA interrelates with the requirements of IHL.  Assuming that IHL even authorizes detention and that analogies to the rules of International Armed Conflict (IAC) are appropriate for deriving the detention standards, Section 1031 would not likely comply with those standards. First, Section 1031 authorizes the detention of any member of al Qaeda, the Taliban, or “associated forces”.  The assumption seems to be that membership in an armed group provides a sufficient basis for detention under IHL in these circumstances, but that’s far from clear.  Membership could be a lawful basis for detention if analogies to the POW detention in GC3 are appropriate, but I think the principle of distinction counsels against applying the GC3 POW detention regime (as opposed to the GC4 civilian internment regime) to members of irregular forces acting on behalf of non-state actors.  Anyhow, I’m willing to concede that this ship has more or less sailed on under current domestic law (at least as applied to members of al Qaeda and the Taliban pre-Afghanistan drawdown).  But it’s important to note that the issue is hardly settled as a matter of international law.  [I agree that IHL is not settled with respect to detention authority in the NIAC setting.  But I do not agree that the principle of distinction cuts in favor of applying a GCIV analogy rather than a GCIII analogy when it comes to persons who are members of organized armed groups; it can just as easily be argued that it cuts the opposite way, which highlights the point that members of organized armed groups flout and confound the principle of distinction.]  Second, a GC3 POW detention regime would not provide a basis for detaining “supporters” of armed groups, which is why you’d have to have to analogize to the civilian internment provisions in GC4 as a possible authority for detention.  Here, you write that “there is little doubt that someone who is aiding the enemy” could be detained pursuant to this authority.  I think that’s an overstatement.  GC4 permits the internment of civilians “only if the security of the Detaining Power makes it absolutely necessary.”  Considering that “substantial” or “direct” support is not defined in the statute (or in the current habeas jurisprudence) and could go beyond the many otherwise innocuous activities that constitute material support under the criminal law, the support grounds for detention is likely to be overbroad.  Moreover, security internees held pursuant to GC4 detention grounds can only be held so long as they constitute a security risk, not “until the end of hostilities” as Section 1031 suggests.  [This draws attention to several important features of the GCIV security internment model.  I suspect we disagree as to how much bite the "absolute necessity" standard actually entails, or should entail, in practice.] Finally, while I hope you’re correct that the language in question in Section 1031 – “captured in the course of hostilities” – serves to limit the detention authority, I wouldn’t be so confident.  There’s nothing in Section 1031 that states that U.S. armed forces must do the capturing or that such “hostilities” must be directed at U.S. forces.  That’s not to say that Section 1031 necessarily authorizes the detention of a Hezbollah fighter that’s targeting Israel, but it’s also by no means clear that the detention authority is limited to those posing a direct threat to the United States.  The bigger problem is that Section 1031 could be construed to authorize the detention of individuals not sufficiently connected to any ongoing armed conflict.  While the AUMF may be sufficient to delineate the scope of the armed conflict as a matter of domestic law, it’s a mistake to assume that anything authorized by the AUMF constitutes armed conflict, to which IHL is applicable, since IHL has its own threshold requirements for determining the existence of armed conflict.  Even assuming the existence of such a broad and amorphous armed conflict, the “captured in the course of hostilities” language does not necessarily guarantee the required nexus between the individual subject to detention and hostilities in the armed conflict.  Unlike in the Military Commissions Act, where there’s at least some attempt to define “hostilities” to create a nexus to armed conflict, Section 1031 could be construed to create a self-fulfilling prophecy where the mere deployment of the military to detain the targeted individual creates the “hostilities” used (in part) to justify the detention.  [If I read Raha correctly, he is making two distinct arguments here.  First, he expresses concern about the scope of 1031 given than the "course of hostilities" condition does not explicitly mention attacks on or captures by US forces.  I would not want it to contain such conditions.  This would be a dramatic narrowing of existing authority under the AUMF; we are engaged in coalition operations, after all, and routinely detain persons captured by others who have not directly attacked US personnel but who nonetheless are members of AQ or the Taliban.  That said, I don't see even the slightest chance that 1031 could be fairly read to encompass the Hezbollah-Israel scenario; there's just not way to reconcile it with the requirement of an AUMF nexus. Second, Raha expresses concern that 1031 in any event would allow detention of persons even absent conditions of armed conflict.  That of course is a familiar criticism of the AUMF as well, given disagreement as to how broadly the US has construed the armed conflict concept to apply. I therefore don't see 1031 exacerbating that debate, though perhaps I should give it more thought.]  Let’s put the Hezbollah fighter aside for a second and consider this question: Is there anything in Section 1031 that would prohibit the government from using the military to indefinitely detain without charge a little old lady from Switzerland who thinks she wrote a check to charity, but unwittingly ends up helping fund a group “associated” with al Qaeda?  If there is, I don’t see it.  [This hypo presents the question about the mens rea associated with "substantial support" as a detention standard.  Section 1031 does not address mens rea in this context, and so the question lingers out there: must the person at least know the identity of the group to which it give support?  It's worth noting that even the sweeping civilian criminal material support law, 18 USC 2339B, requires actual knowledge, and could not be applied in the little old lady hypo.  So why does this issue, and this specific hypo, always come up in the military detention context?  Because it was widely reported that a DOJ attorney took this position in 2004 during oral argument before a district judge in an early GTMO habeas case.  Yet this has, all along, been a matter of misreporting; as set forth here by Adam White, the government never argued that knowledge of the identity of the recipient group should not be required.  There is truly no reason to think the answer would be different under section 1031, though I'd be perfectly happy to see the issue foreclosed by inserting language in 1031 that made clear that support must be knowing and volitional.]