[Editor’s Note: This post is part of a“mini forum” hosted by Just Security that analyzes different elements of the judgment in Serdar Mohammed v. Secretary of State for Defense (full text). Other posts in the series includes analysis from Fionnuala Ní Aoláin (here), Ryan Goodman (here), and Derek Jinks (here), as well as a guest post by Jonathan Horowitz and Christopher Rogers (here).]
Justice Leggatt’s recent decision in Serdar Mohammed v. Ministry of Defense  EWHC, 1369 (QB), is rightly attracting attention. Posts here by Fionnuala Ní Aoláin, here by Jonathan Horowitz and Christopher Rogers, and here by Ryan Goodman, explore multiple aspects of this ruling, including its analysis of the extraterritorial application of international human rights law (IHRL) to Afghanistan; the intersection of IHRL, international humanitarian law (IHL), UN Security Council Resolutions authorizing U.K. participation in ISAF, and Afghan detention law; and the insistence that a state formally derogate from its IHRL-based obligations to exercise exceptional detention powers. The upshot of the decision, which will be appealed, prohibits U.K. forces in Afghanistan from detaining suspected insurgents for more than four days based on a special exception to standard ISAF policy. While the ruling has no direct bearing on U.S. detentions in Afghanistan, where U.S. continues to hold approximately fifty non-Afghan prisoners, it does cast light on those detentions and U.S. detentions more generally. Below, I offer a few thoughts on what the decision suggests about the curious—and, in my view, troubling—amalgam that is the U.S. law of detention.
Two conclusions help form Justice Leggatt’s opinion: first, that IHRL—in this case, the European Convention of Human Rights (ECHR)—applies extraterritorially (and, relatedly that the detention could be attributed to the UK under the state agent authority test in Al-Jedda v. United Kingdom); and second, that the ECHR requirements of prompt judicial access applies in noninternational armed conflicts (NIACs). The U.S. rejects both propositions: maintaining that its IHRL treaty obligations are limited to U.S. territory and that, in any event, the law of armed conflict, as lex specialis, occupies the field and displaces any applicable IHRL requirements. While the U.S. today recognizes that all law-of-armed conflict detentions are subject to the treatment-based constraints under Common Article 3 of the Geneva Conventions, it resists any requirement of judicial access.
Enter the Constitution. Much of the post-9/11 U.S. habeas litigation may be viewed as an effort to use domestic law to fill gaps created by the United States’ exclusion of IHRL from war-on-terrorism detentions. That litigation’s success has been limited. The Supreme Court’s 2008 decision in Boumediene v. Bushprovided a partial breakthrough, finding extraterritorial detentions could be subject to judicial review under the Constitution’s habeas corpus Suspension Clause. But the decision fell considerably short of requiring such review under the effective control analysis widely used to determine IHRL’s extraterritorial application. The Supreme Court instead adopted a malleable test that incorporated various carve-outs, including based on the practical obstacles to review.
Lower courts have subsequently refused to extend habeas rights to U.S. detainees in Afghanistan, relying on the prisoners’ location in an active theater of war. While analyzed under the head of jurisdiction, the D.C. Circuit’s Bagram habeas decisions endorse the U.S. position that the law of armed conflict displaces any guarantees under human rights law (or their constitutional analogue). Further, at Guantanamo, the review itself has often proven ineffective, diluted by a concern among judges of interfering with executive war-making authority and decisionmaking.
Reading Justice Leggatt’s decision against the backdrop of this U.S. jurisprudence highlights some shortcomings of the U.S. approach. Review is arbitrarily determined by the location of prisoner and a judge’s discretionary determination about its possible impact on operations. Ironically, the U.S. approach rests partly on the belief that judicial access is incompatible with armed conflict, while eschewing fine-grained analysis of international law (Recall the international-law mishmash of Hamdi v. Rusmfeld, the fountainhead of U.S. war-on-terrorism detention jurisprudence, which neglected to define the type of armed conflict or specify the IHL rules that apply). Justice Leggatt’s opinion provides a stark counter-example. His opinion, moreover, bolsters what critics of U.S. detention policy have long described as the adverse political and operational consequences of displacing requirements of judicial review under domestic law and IHRL. U.S. judges would do well to pay it heed.