Who May Be Held? Military Detention through the Habeas Lens

• Author: Robert M. Chesney
• Position: Professor in Law, University of Texas School of Law
• Pages: 113-174

VI

Who May Be Held? Military Detention

through the Habeas Lens

Robert M. Chesney*

Wholawfully may be held in military custody without criminal charge? It

seems asimple question, and in some settings it is. But in the settings

that matter most at the moment—counterterrorism and counterinsurgency—it is

not simple at all. The very metrics of legality are disputed in those contexts, with

sharp disagreement regarding which bodies of law are relevant and what if any-

thing each actually says about the detention-scope issue.

This problem has been with us for some time. It has lurked in the background of

US detention operations in Afghanistan since 2001 land in Iraq since 2003.2It is

central, of course, to the controversies surrounding the use of detention at Guan-

tanamo and in the United States itself.3More than one hundred thousand individ-

uals have been detained without criminal charge across these settings,4giving rise

to an immense amount of scholarship, advocacy and litigation along the way. Re-

markably, however, the question of who lawfully may be detained remains

unsettled in important respects.

*Charles I. Francis Professor in Law, University of Texas School of Law. Iam grateful to the or-

ganizers and participants at the Naval War College's annual conference for their comments and

criticisms, to the Office ofthe General Counsel ofthe Department of Defense for the opportunity

to present this work in progress, and to Daniel Jackson for outstanding research assistance. A

longer version of this article appears in the Boston College Law Review (forthcoming 201 1).

Who May Be Held? Military Detention through the Habeas Lens

The problem exists along two distinct dimensions, only one of which do Iad-

dress in this article. First, we have indeterminacy at the group level insofar as there

is disagreement with respect to whether any authority to use military detention

that the US government may currently possess extends to any entities other than al

Qaeda and the Taliban, and also insofar as there is disagreement regarding which

entities are sufficiently affiliated with al Qaeda or the Taliban so as to be indistin-

guishable from them for purposes of this inquiry.5Even if we had agreement re-

garding which groups are relevant for purposes of the detention issue, however,

indeterminacy also manifests at the individual level insofar as we also lack agree-

ment regarding the mix of conditions that are necessary or sufficient to justify the

detention of aparticular person. My aim in this article is to shed light solely on this

individualized set of questions.

That we lack consensus with respect to individualized detention criteria and

constraints despite nearly adecade's worth of litigation and debate to some extent

reflects our preoccupation with other questions associated with military deten-

tion, above all the seven years' war over the habeas jurisdiction of federal courts

in relation to the Guantanamo detainees.6Yet even prior to the resolution of that

jurisdictional dispute in the Supreme Court's 2008 decision in Boumediene v.

Bush,7courts did have several occasions to address the detention-scope issue; they

just did not develop aconsensus as aresult. On the contrary, they splintered

sharply in those cases, advancing an array of incompatible views regarding the ap-

plicable law.8

Matters have improved to some extent in the aftermath of Boumediene.9Many

district and circuit court judges have had achance to address who lawfully may be

detained in the context of the Guantanamo habeas litigation. Their decisions re-

flect aconsensus that the government does have authority to detain without crim-

inal charge in at least some circumstances, and that (at least for most of the judges)

these circumstances at aminimum include at least some scenarios involving per-

sons who are "part of al Qaeda or the Taliban (whether the consensus extends to

membership in other groups is much less clear). But beyond these points disagree-

ment reigns.

Whether aperson is "part of agroup may be an administrable inquiry in the

context of aregular armed force, but it does not map easily onto scenarios involv-

ing clandestine non-State actors with indistinct and unstable organizational struc-

tures. As aresult, judges who agree that members of such groups may be detained

do not necessarily agree as to what conduct actually counts as membership in this

context. And the judges most definitely have not reached consensus with respect to

whether detention lawfully may be used in the distinct situation in which anon-

member provides support to these groups. Indeed, the executive branch itself now

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Robert M. Chesney

appears divided on the propriety ofusing support as astand-alone detention predi-

cate. Perhaps most remarkably, an apparent consensus as to the relevance of the

laws of war to these questions recently came unglued, with adivided panel of the

D.C. Circuit Court ofAppeals declaring that the matter should turn exclusively on

domestic law considerations10 and asubsequent assertion by amajority of the ac-

tive judges of that court in turn declaring that assertion to be dicta. 11

All ofwhich is interesting in the seminar setting, but does any of it actually mat-

ter in practice? That is not afrivolous question. By and large the merits determina-

tions in the Guantanamo habeas cases have turned on the sufficiency of the

government's evidence (or lack thereof), and not on the legal boundaries of the

government's notional detention authority. 12 For better or worse, moreover, habeas

jurisdiction has not (yet) been extended to overseas military detention operations

involving non-citizens at locations other than Guantanamo,13 and thus one might

be tempted to conclude that any problems resulting from the judiciary's persistent

inability to resolve the detention-scope question will be confined to afinite and

shrinking set of cases.

In fact, the question of who lawfully maybe detained matters agreat deal in ac-

tual practice. As athreshold matter, the two premises mentioned above may prove

to be incorrect. Much Guantanamo habeas litigation is yet to come, and it maywell

be that future cases will turn on this very issue. Similarly, the precise boundaries of

habeas jurisdiction have not yet been fixed; though currently jurisdiction does not

extend to Afghanistan, that question remains the subject oflive litigation. 14 Even if

those premises remain valid, however, other considerations ensure the relevance of

the detention-scope question.

First, the answers judges give to this question have spillover effects beyond the

immediate context of habeas. 15 They overhang any other detention operations

conducted under the rubric ofthe same underlying detention authority, regardless

ofwhether those operations are subject to judicial review; government and military

lawyers will not simply ignore judicial pronouncements regarding the scope of that

authority, and may be expected to advise commanders and policymakers accord-

ingly. By the same token, judicial decisions regarding the notional scope of deten-

tion authority may apply by extension to questions of targeting with lethal force in

the field pursuant to that same authority, notwithstanding that targeting decisions

ordinarily are not directly subject to judicial review. 16 Future conflicts unrelated to

9/11 may also be impacted. The judges in the habeas litigation at times have in-

cluded in their analyses interpretations ofkey terms and concepts from both inter-

national and domestic law—such as "direct participation in hostilities" and "all

necessary and appropriate force"—that will be relevant in most if not all future

armed conflicts.

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