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Another judge defines detention power

As the pace quickens among federal judges to carry out the task assigned by the Supreme Court to spell out when the President may detain terrorism suspects at Guantanamo Bay, a fourth judge on Tuesday offered a definition. This time, the Obama Administration lost a bit more of the detention authority that other judges have embraced.

U.S. District Judge John D. Bates (in a ruling found here) became the first trial judge to significantly limit the power to detain individuals based on their “support” of a terrorist network (as opposed to being an active member).  Both the Bush Administration and the Obama Administration had claimed power to hold those who supported terrorist groups, though President Obama’s claim was more limited.

But Judge Bates, in a 22-page opinion in Hamlily v. Obama, 05-763, concluded that detaining an individual who “substantially supports” Al Qaeda or Taliban forces, but is not a part of such a group, “is simply not authorized” by Congress’s post-9/11 resolution (the Authorization for Use of Military Force) “or by the law of war.  Hence, the government’s reliance on ‘substantial support’ as a basis for detention independent of membership in the Taliban, al Qaeda or an associated force is rejected.”

The “substantial support” basis for detention was the formulation suggested by the Obama Administration. The Bush Administration had simply claimed power if there was “support” for a terrorist group.

Bates did not rule out totally any reliance upon a concept of support, however.  “Substantial support,” while not “an independent basis for detention,” will be taken into account, he said, in helping to determine who is a “part of” a terrorist organization.

llustrating the point, Bates wrote that “if the evidence demonstraes that an individual did not identify himself as a member, but undertook certain tasks within the command structure or rendered frequent substantive assistance to al Qaeda, whether operational, financial or otherwise, then a court might conclude that he was a ‘part of’ the organization.”  That is to be determined case by case, the judge indicated.

Before Bates,  three other judges had written definitions for presidential detention power. With each succeeding one, the power appeared to be narrowing.  (A fourth judge has issued a ruling on one detainee’s case, granting habeas relief, without questioning the Obama Administration claim to authority.)

There is enough variation between the versions that have emerged so far (and that are likely to emerge as other District judges fashion their own definitions in coming weeks) that this concept almost certainly will have to be sorted out in appeals to the D.C. Circuit Court and, perhaps, to the Supreme Court.

The Supreme Court, in its ruling 11 months ago in Boumediene v. Bush, recognizing a constitutional right for Guantanamo detainees to challenge their captivity, did not specify how far the President’s detention power reached.  That is now being worked out, singly, by each of the dozen judges in Washington handling the nearly 200 Guantanano habeas cases.

Judge Bates’ definition had these criticial parts: detention power could be used for those who “are or were part of Taliban or al Qaeda forces or associated forces” engaging in hostilities against the U.S. or its coalition partners; it cannot be used — without more — based on substantial or direct support of such organizations; and it can be used for “any person who has directly participated in hostilities,” including directly participating in “a belligerent act in aid” of enemy armed forces.

Ultimately, the judge said, “drawing the permissible bounds of the government’s detention authority can only truly occur as courts consider the uniques facts of each individual case as they are presented.”  What he had written about the authority, Bates added, was for the guidance of lawyers on both sides of the habeas process.