Judge Lamberth decides Warafi

As Jen noted, Judge Lamberth today denied Mukhtar Yahia Naji al Warafi’s renewed habeas petition challenging his continued military detention at Guantánamo.  As I have previously explained, al Warafi argues that because he is detained as a member of the Taliban’s armed forces, and because the United States and the Taliban are no longer in an armed conflict with one another, the government’s domestic law authority to detain al Warafi under the 2001 AUMF has expired.

As I discussed in my previous post, both parties in this case argued that President’s Obama’s stated views on this question were determinative–but they disagreed on which of those stated views ought to govern.  The vast majority of Judge Lamberth’s opinion is devoted to explaining that both parties were wrong:  the stated views of the warring parties (including the political branches in the U.S.) are not determinative of the question of when detention authority ends; in particular, although the President’s stated views on that question are relevant, they are “not the only evidence that matters to this issue.”   (In my previous post I explain why I think that’s correct.  See also Deborah Pearlstein’s post, and my related post on the question of who decides when an armed conflict commences in the al-Nashiri military commissions case.)

Judge Lamberth then reaches the merits of the question in the final page or so of his opinion.  As Deborah and I have both explained, the important substantive question is whether the AUMF detention authority extends until the end of the armed conflict between the U.S. and the Taliban, or until the end of hostilities.  Judge Lamberth simply assumes the latter, based on a dictum from the D.C. Circuit panel opinion in al -Bihani.  He then further assumes that “hostilities” means any fighting at all . . . and therefore rules against al Warafi, since of course there remains some fighting between the U.S. and the Taliban.  That analysis, however, elides the key legal question.  To be sure, the governing Supreme Court plurality opinion in Hamdi referred repeatedly to detention until the end of “active hostilities”; but Justice O’Connor also wrote that “[w]e conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.”

In a traditional, state-on-state armed conflict, the continuation of active hostilities itself means that the “armed conflict” continues.  That is not necessarily the case, however, with respect to a noninternational armed conflict, in which it is possibly the case that the continuation of the armed conflict requires a continuation of some level of intensity of hostilities.  (There’s not much law on the question.)  That uncertainty means that there are at least three possibilities in Warafi’s case:  (i) Congress intended to authorize detention as long as the two parties are fighting, regardless of whether there continues to be an armed conflict for purposes of international law (which is what Judge Lamberth assumes — and there’s certainly intuitive appeal behind the assumption, given that the purpose of the military detention is to incapacitate the individual from returning to the enemy to fight against the U.S.); (ii) Congress intended to authorize continued detention only until the end of the armed conflict — but the armed conflict between the U.S. and the Taliban continues (the executive’s view), so that al Warafi’s detention is still authorized; or (iii) Congress intended to authorize continued detention only until the end of the armed conflict — and the armed conflict has ended, because of a lack of sustained hostilities of sufficient intensity, in which case the AUMF detention authority for al Warafi would expire, save for any “wind up” authority.

If al Warafi appeals today’s decision, we should expect to see more sustained attention devoted to which of these three possibilities is correct.


About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).