The opinion of the court was delivered by: John D. Bates United States District Judge
Petitioners are detainees at the United States Naval Base at Guantanamo Bay who have challenged the legality of their detentions by seeking writs of habeas corpus. The issue presently before the Court is a threshold legal question in these habeas proceedings: what is the scope of the government's authority to detain these, and other, detainees pursuant to the Authorization for Use of Military Force ("AUMF"), Pub. L. 107-40, 115 Stat. 224 (2001), as informed by the law of war?*fn1 In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court acknowledged that the district courts would have to address this issue in a piecemeal fashion by delimiting "[t]he permissible bounds" of the government's detention authority "as subsequent cases are presented to them."*fn2 Id. at 522 n.1. Since Hamdi was decided, the Supreme Court has not revisited this question and no court of appeals has clarified the issue, although one has tried.*fn3 And it is only recently -- in the wake of the Supreme Court's decision in Boumediene v. Bush, 128 S.Ct. 2229 (2008) -- that other judges of this Court have begun to examine the "permissible bounds" of the government's authority to detain those being held at Guantanamo. It is with this limited guidance, then, that the Court undertakes its inquiry.
On March 13, 2009, in response to a prior order of this Court, the government submitted a refinement of its position with respect to its authority to detain those individuals being held at Guantanamo.*fn4 The government proposed the following "definitional framework":
The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks.*fn5 The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.
Resp'ts' Mem. at 2.*fn6 The government contends that its proposed framework is based principally upon the AUMF, which authorizes the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons." Pub. L. 107-40, § 2(a), 115 Stat. 224, 224. Acknowledging the Supreme Court's decision in Hamdi, the government also asserts that "[t]he detention authority conferred by the AUMF is necessarily informed by principles of the laws of war." Resp'ts' Mem. at 1 (citing Hamdi, 542 U.S. at 521). According to the government, then, because the law of war has evolved primarily in the context of international armed conflicts between nations, the President has the authority to detain "those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable." Id.
Not surprisingly, petitioners are highly critical of the government's framework. They assert that the government's claimed detention authority far exceeds that which is permitted by the AUMF and the Constitution and does considerable violence to fundamental principles of the law of war. See Pet'rs' Joint Mem. in Reply to Resp'ts' Mem. of Mar. 13, 2009 ("Pet'rs' Mem.") at 1-2 (Mar. 27, 2009). Specifically, petitioners contend that the government has developed "new detention standards by 'analogy to' the law of war" in "an attempt to create a new legal standard to deal with what [it] contend[s] are new and different circumstances." Id. Such an attempt is, in petitioners' view, contrary to both domestic and international law because neither body of law permits the government "to detain individuals based merely on some unspecified degree of association with persons or entities targeted by the AUMF." Id. at 2. Petitioners assert, then, that "[t]he Court should follow Hamdi's lead, and rule that the scope of the executive's detention power in these cases is that authorized by the traditional law of war." Id.
That, according to petitioners, encompasses only "individuals who were lawful combatants under Article 4 of the Geneva Conventions (members of an armed force of a State or other militia as described in Article 4),*fn7 and civilians who become unlawful combatants by reason of their direct participation in hostilities as that standard is understood in international law." Id. at 5.
To aid its consideration of these and other related issues, the Court held a hearing on April 17, 2009.*fn8 Less than a week later, Judge Walton issued his opinion in Gherebi v. Obama, Civ. A. No. 04-1164, 2009 WL 1068955 (D.D.C. Apr. 22, 2009). Gherebi concerns the same question at issue here and Judge Walton's thorough and thoughtful opinion advances this Court's analysis considerably.*fn9 He concluded that "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." Id. at *24. In reaching that conclusion, the court noted that it "shares petitioners' distaste for the government's reliance on the term 'support' at all, laden as it is with references to domestic criminal law rather than the laws of war that actually restrict the President's discretion in this area." Id. at *23. Nevertheless, Gherebi adopted the government's proposed definitional framework largely because it found, after careful analysis, that it "comports with the laws of war." Id. at *24.
A starting point for the analysis of this issue is the premise recently articulated by another judge of this Court: "I do not believe . . . that it is the province of the judiciary to draft definitions. It is our limited role to determine whether definitions crafted by either the Executive or the Legislative branch, or both, are consistent with the President's authority under the [AUMF]."*fn10 Boumediene v. Bush, 583 F. Supp. 2d 133, 134 (D.D.C. 2008) (emphasis in original). This approach is appropriate, if not required, given the singular role of the Executive in matters of foreign affairs and the deference that he is customarily given by courts when resolving matters in that realm. See, e.g., Munaf v. Geren, 128 S.Ct. 2207, 2218 (2008) (recognizing that "'courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs'") (quoting Dep't of Navy v. Egan, 484 U.S. 518, 530 (1988)); Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 348 (2005) (stating that there is a "customary policy of deference to the President in matters of foreign affairs"). Although there is some disagreement regarding the extent of the deference owed the Executive in this setting, it is beyond question that some deference is required. Compare Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 Yale L.J. 1170, 1220 (2007) (arguing that with respect to the AUMF, "the President should be taken to have the authority to interpret ambiguities as he chooses"), with Derek Jinks & Neal Katyal, Disregarding Foreign Relations Law, 116 Yale L.J. 1230, 1234 (2007) (acknowledging that under existing doctrines deference is warranted in some circumstances, but arguing that "increased judicial deference to the executive in the foreign relations domain is inappropriate").
With that in mind, the Court turns to the government's proposed framework. Although this Court concurs in much of the reasoning and conclusions of Gherebi, it does not agree with the decision to adopt the government's framework in its entirety.*fn11 Specifically, the Court rejects the concept of "substantial support" as an independent basis for detention. Likewise, the Court finds that "directly support[ing] hostilities" is not a proper basis for detention. In short, the Court can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of "support" as a valid ground for detention. The Court does not accept the government's position in full, then, even given the deference accorded to the Executive in this realm, because it is ultimately the province of the courts to say "what the law is," Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803), and in this context that means identifying the "permissible bounds" of the Executive's detention authority, Hamdi, 542 U.S. at 522 n.1. Detention based on substantial or direct support of the Taliban, al Qaeda or associated forces, without more, is simply not warranted by domestic law or the law of war.
With the exception of these two "support"-based elements, however, the Court will adopt the government's proposed framework, largely for the reasons explained in Gherebi. The AUMF and the law of war do authorize the government to detain those who are "part of" the "Taliban or al Qaida forces." Because the AUMF permits the President "to use all necessary and appropriate force" against "organizations" involved in the September 11 attacks, it naturally follows that force is also authorized against the members of those organizations. In light of Hamdi and subsequent cases, such force includes the power to detain. That is consistent with the law of war principles governing non-international conflicts. The authority also reaches those who were members of "associated forces," which the Court interprets to mean "co-belligerents" as that term is understood under the law of war. Lastly, the government's detention authority covers "any person who has committed a belligerent act," which the Court interprets to mean any person who has directly participated in hostilities. But while the Court concludes that the concepts of "substantial support" and "direct support" are not, under the law of war, independent bases for detention, evidence tending to demonstrate that a petitioner provided significant "support" is relevant in assessing whether he was "part of" a covered organization (through membership or otherwise) or "committed a belligerent act" (through direct participation in hostilities).
I. Authority to Detain "Persons Who were Part of, or Substantially Supported, Taliban or al Qaida ...