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U.S. wins — mostly — on detention power

The Supreme Court has not yet defined explicitly the president’s power to detain terrorism suspects, even after five years of deciding detention cases. A federal judge on Wednesday began a new effort to define that authority. The result was that the Obama Administration’s position — a “refined” version of the Bush Administration approach — won its first full-scale test in a federal court.

At the same time, however, the judge — U.S. District Judge Reggie B. Walton — issued a warning that he would not allow detention authority to creep beyond some “limiting principles’ he laid down.  The judge’s 48-page opinion in Gherebi, et al., v. Obama, et al. (04-1164) and other cases can be found here.

Judge Walton’s ruling only applies to the Guantanamo Bay detainees whose cases are assigned to his Court.  One other District Judge has been using a detention definition that gives the government more authority than the Obama Administration now claims, and others on the District bench are weighing their own definitions for the cases on their dockets. Sooner or later, the Supreme Court may have to sort it all out.

Judge Walton’s definition reads this way: “The President has the authority to detain persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms ‘substantially supported’ and ‘part of’ are interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture.”

That is close to the Obama Administration position.  It added the word “substantially” to the concept of “support” of terrorist forces that the Bush Administration had wanted the courts to follow.  The judge said he had some “distaste for the government’s reliance on the term ‘support’ at all,” but went ahead and embraced that as part of the phrase “substantially support.”  On closer inspection, he said, the government definition “comports with the laws of war.”

The judge, though, did not add to his definition another concept the new Administration had proposed: power to detain individuals who provide substantial support to “forces associated with the Taliban and al-Qaeda.”  He said he would rule later on that, “if that becomes necessary.”

He explicitly cautioned the government that any attempt it made to “apply its ‘substantial support’ standard” beyond the limits he imposed would be rejected by the judge, on the theory that it was an unconstitutional delegation of Congress’s power to the president.

Elaborating on his definition, Walton said it would mean that individuals could be detained if they were “members of the ‘armed forces’ of an enemy organization” when captured.  “Amed forces,” he said, would read quite broadly to include any group that was “organized” under some kind of commander who was in control, and engaged in some kind of “combat operations.”

“Only persons who receive and execute orders from the enemy’s command structure,” the judge said, could be treated as members of the armed forces subject to detention after capture.  “The key question,” he declared, “is whether an individual receives and executes orders from the enemy force’s combat apparatus….The individual must have some sort of ‘structured’ role in the ‘hierarchy’ of the enemy force.”

That could include, the judge said, those who provided housing, feeding or transporting “al-Qaeda fighters,” such as a cook who was a part of the armed forces but was temporarily assigned only a non-combat role.

Thus, he added, “civilians who may have some tangential connections to such organizations” could not b e detained. “Sympathizers, propagandists, and financiers who have no involvement” with the command structure, even though “members of the enemy organization in an abstract sense,” could not be detained unless they took “a direct part in hostilities.”

The judge rejected arguments by detainees’ lawyers that only an individual who was taking part in active hostilities against the U.S. at the time of capture could be detained.  The judge also turned aside their argument that the Obama Administration approach was “entirely nebulous.”

He did aceept the government’s contention that, at this point, he should not try to spell out explicitly what kind of tie to terrorist organizations would amount to “substantial support.”  That, he said, “must and will be fleshed out on a case-by-case basis.”