From Nadir to Zenith: The Power to Detain in War

AuthorChristopher M. Ford
PositionJudge Advocate, U.S. Army
Pages203-252
2011] THE POWER TO DETAIN IN WAR 203
FROM NADIR TO ZENITH: THE POWER TO DETAIN IN WAR
MAJOR CHRISTOPHER M. FORD
Remarkably . . . the state of the law regarding the scope
of the President’s authority to detain . . . remains
unsettled.1
I. Introduction
On January 30, 2009, the United States charged Mohammed Jawad
with attempted murder for an attack on a U.S. military patrol in
December 2002.2 Six months later, the U.S. District Court for the District
of Columbia ordered his release from custody for lack of evidence. The
court’s order mandated that the Government delay Jawad’s release until
“15 days following the submission of . . . information to the Congress.”3
On its face, the order is paradoxical—essentially, the court ordered
Jawad’s release and, in the same stroke of the pen, his detention. The
Supplemental Authorization Act (SAA) of 2009 created this apparent
paradox by prohibiting appropriated funds from being used “to transfer
or release an individual detained at Naval Station, Guantanamo Bay,
Cuba . . . unless the President submits to the Congress” certain
information.4
Judge Advocate, U.S. Army. Presently assigned as Group Judge Advocate, 1st Special
Forces Group (Airborne), Joint Base Lewis-McChord. LL.M., The Judge Advocate
General’s Legal Center and School, U.S. Army, Charlottesville, Virginia; J.D., 2002,
University of South Carolina School of Law, Columbia, South Carolina; B.A., 1999,
Furman University, Greenville, South Carolina. Previous assignments include Trial
Defense Service, Fort Carson, Colorado, 2008–2009; Assistant Professor, U.S. Military
Academy, West Point, New York, 2005–2008; Brigade Judge Advocate, 5th Brigade
Combat Team, 1st Cavalry Division, Baghdad, Iraq, 2004–2005; Administrative and
Operational Law Attorney, 1st Cavalry Division, Fort Hood, Texas, 2003–2004; Legal
Assistance Attorney, 2003, 1st Cavalry Division, Fort Hood, Texas. Member of the bar of
South Carolina. This article was submitted in partial completion of the Master of Laws
requirements of the 58th Judge Advocate Officer Graduate Course. The author would like
to thank Major Robert E. Barnsby for his assistance with this article.
1 Gherebi v. Obama, 609 F. Supp. 2d 43, 45 (D.D.C. 2009).
2 Charge Sheet, Bacha v. Obama, No. 05-2385, 2009 WL 2365846 1 (D.D.C. Jan. 30,
2008).
3 Order, Bacha v. Obama, No. 05-2385, 2009 WL 2365846 (D.D.C. July 30, 2009).
4 Supplemental Authorization Act of 2009, Pub. L. No. 111-32, § 14102(e), 123 Stat.
1859 (2009).
204 MILITARY LAW REVIEW [Vol. 207
This application of the SAA implicates significant separation of
powers concerns. Most fundamentally, who controls the detention of
individuals on the battlefield? 5 Assuming the President possesses some
inherent authority to detain—as this article does—to what extent can
Congress prescribe the President’s authority? Could Congress go so far
as to direct the detention of a particular individual or class of individuals;
or, conversely, could they prohibit the detention of the same? Though
these questions involve fundamental constitutional issues and have been
the focus of four Supreme Court rulings6 and more than 200 federal court
opinions since 2001,7 the issue remains decidedly unsettled. This article
argues that the President possesses some inherent power to detain, the
breadth of which, relative to Congress, is a function of two factors: the
location of detention (e.g., whether it occurs outside or inside the United
States and its territories) and the nature of the detention (e.g., the
intensity of the conflict in which the detention occurs).8
Part II of this article explores the authority to detain individuals on the
battlefield under both international and domestic law. Both treaty law
and Customary International Law (CIL) provide reasonably clear
authority to detain individuals during the conduct of armed conflict.9
Domestically, the authority is more uncertain.10 Given the constitutional
allocation of war powers generally, and the absence of an express
allocation of detention authority specifically, the existence and
parameters of powers in this area remain fiercely contested issues.11
Broadly stated, Presidents have historically exercised detention authority
5 The terms “detain” and “detention” as used in this article reference the initial physical
apprehension of an individual who is a non-U.S. citizen. They do not refer to the
continued internment or detention of the individual. The point at which the power to
initially detain transmutes into indefinite detention power (or lack thereof) is not clear.
This distinction, however, is beyond the scope of this article. The term “on the
battlefield” refers to a detention made by a member of the military for other than law
enforcement purposes. It has no geographic limitations; that is, an individual can be
detained “on the battlefield” inside or outside the United States. For a discussion on the
separation of war powers and the detention of U.S. citizens, see Stephen I. Vladeck, Note,
The Detention Power, 22 YALE L. & POLY REV. 153, 164 (2004).
6 Hamdi v. Rumsfeld, 542 U.S. 507 (2004), Boumediene v. Bush, 553 U.S. 723 (2008),
Rasul v. Bush, 542 U.S. 466 (2004), Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
7 Search by author on November 24, 2009 on WestLaw for federal cases containing the
terms “Guantanamo” and “Habeas” revealed 275 results.
8 See infra Part IV.
9 See infra Part II.
10 See infra Part II.
11 See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507 (2004), Boumediene, 553 U.S. 573 (2008),
Rasul v. Bush, 542 U.S. 466, (2004), Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
2011] THE POWER TO DETAIN IN WAR 205
without congressional authorization, and Congress has largely
acquiesced.12 This is not, however, universally true.13
Building on the foundation established in Part II, Part III examines
not what limitations Congress can impose, but what limitations they have
imposed since September 11, 2001 (9/11). Specifically, this section
examines the Authorization for the Use of Military Force (AUMF),14 the
Authorization for the Use of Force Against Iraq (AUMF Iraq),15 the
Detainee Treatment Act,16 the Military Commissions Act,17 the Uniting
and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001(PATRIOT Act),18 and the
Supplemental Appropriations Acts of 2009 and 2010.19 This section
concludes that to the extent these statutes are limitations, they only limit
actions which occur after the detention. None of these acts directs,
prescribes, or regulates the President’s authority to detain.20
Part IV of the of the article provides a framework to analyze these
current issues as well as the broader issue of the extent to which
Congress may restrict the President’s inherent detention authority. The
framework finds that the President enjoys maximum detention powers
during open and active conflict, termed “high conflict,” occurring outside
of the United States.21 The President’s detention powers ebb to their
minimum level—and Congress’s powers stand at their high point—
during reduced or inactive conflict, or “low conflict,” inside the United
12 See infra Part II.
13 See id.
14 Authorization for the Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001)
[hereinafter AUMF].
15 Authorization for the Use of Military Force Against Iraq, Pub. L. No. 107-243, 116
Stat. 1497–1502 (2002) [hereinafter AUMF Iraq].
16 Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1005, 119 Stat. 2739 (2005)
[hereinafter Detainee Treatment Act].
17 Military Commissions Act, Pub. L. No. 109-366, 120 Stat. 2600, 2636 (2006)
[hereinafter Military Commissions Act].
18 Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272
[hereinafter PATRIOT Act].
19 Supplemental Authorization Act of 2009, Pub. L. No. 111-32 § 14,102, 123 Stat. 1859
(2009) [hereinafter SSA]. The pertinent language in the 2009 Act is identical to the
language in the 2010 Act. See Department of Defense Appropriations Act, 2010, Pub. L.
No. 111-118, § 9011, 123 Stat. 3409, 3468 (2010) [hereinafter DoD Appropriations Act,
2010].
20 See infra notes 191–235 and accompanying text.
21 See infra Part IV.

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