Last month I predicted that one or more Justices would issue a separate opinion when the Court denied certiorari in Hussain, and that the likely topic of such an opinion would be whether the government had carried its burden of proving that Hussain remained a member of Taliban forces at the time he was apprehended.  I was right about a separate opinion, but wrong about its substance.

Justice Breyer’s statement respecting denial of certiorari on Monday does not mention the question of whether Hussain had remained a member of Taliban forces; it focuses, instead, on the antecedent question of whether proof of such membership, standing alone, is legally sufficient to justify AUMF detention at all.

In the post-Boumediene habeas cases, the government has argued, and the habeas courts have agreed, that being part of al Qaeda or Taliban forces is, in and of itself, sufficient for AUMF detention.  And that’s (at most) all the government demonstrated in Hussain — that the individual had been a part of Taliban forces.  The government did not try to demonstrate that Hussain had engaged in any belligerent acts or otherwise been involved in the armed conflict against the United States.

As Justice Breyer notes, however, the Supreme Court has never actually opined on whether being a member of Taliban forces, standing alone, is sufficient for AUMF detention.  Justice O’Connor’s controlling plurality opinion in the leading case, Hamdi v. Rumsfeld, held only that the AUMF authorized military detention of (in her words) “an individual who . . . was part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there” (emphasis added).

Thus, in his statement in Hussain, Justice Breyer writes the following:

The Court has not directly addressed whether the AUMF authorizes, and the Constitution permits, detention on the basis that an individual was part of al Qaeda, or part of the Taliban, but was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.  Nor have we considered whether, assuming detention on these bases is permissible, either the AUMF or the Constitution limits the duration of detention.

Each of these two sentences is, in effect, an invitation to habeas counsel to begin to stress arguments that have not thus far been at the heart of the GTMO litigation.

The latter sentence, of course, harkens back to Justice O’Connor’s own, similar signal in Hamdi about whether the AUMF detention authority might lapse at some future time.  She wrote there that if “the practical circumstances of a given conflict” become “entirely unlike those of the conflicts that informed the development of the law of war,” the Court’s understanding of when detention is a “necessary and appropriate” use of force “may unravel” . . .  but she also indicated that that question would not arise where “[a]ctive combat operations against Taliban fighters . . . are ongoing in Afghanistan.”

It’s fair to assume that when such active combat operations in Afghanistan do cease in the near future, and/or if and when the U.S. concludes that al Qaeda’s capabilities have been sufficiently degraded so that it is no longer a continuing threat to strike the U.S., attorneys for the GTMO detainees will begin to more strenuously press the argument that the continued detention of Taliban and al Qaeda forces is no longer necessary and appropriate, on the theory that there will be no “battle” to which the detainees might return.  (Justice Breyer intriguingly suggests that such a claim might be based upon the Constitution, even if the detainee is an alien, and even if the AUMF continues to authorize detention.  He does not elaborate on what the constitutional argument would be, however.)

Justice Breyer’s other sentence is more provocative and novel, inviting an argument that has not thus far been at the heart of the GTMO litigation.   He suggests that perhaps counsel ought to consider arguing that proof of membership in al Qaeda or Taliban forces is not enough to trigger AUMF authority to detain — that perhaps the government might also need to show that the individual “engaged in an armed conflict against the United States” (or perhaps even, narrower still, that he engaged in such an armed conflict in Afghanistan).

As far as I know, such an argument has rarely been made in the GTMO habeas cases, with the exception of the Khairkhwa case, in which the court of appeals rejected it out of hand:  “In order to detain individuals who were part of the Taliban or al-Qaeda forces, proof that the individuals also actively engaged in combat against the United States and its allies is unnecessary,” the court ruled.  (In his opinion, Judge Randolph asserted that a half-dozen earlier D.C. Circuit opinions had already “decided” the question; but, far as I can tell, in none of those cases did the petitioner argue, or the court decide, that the AUMF does not authorize detention of enemy forces who had not engaged in the armed conflict with the U.S.)

As it happens, a variation on this argument is raised by one of the questions in another pending certiorari petition, in Warafi v. Obama, No. 13-768, which the Supreme Court will consider at its conference next Friday, May 2.  Warafi argues, in particular, not so much that he was not engaged in the Taliban’s “armed conflict” with the United States, but instead that he was not involved in “combat” or “hostilities” in that conflict.  As far as I know, however, Warafi did not press this particular Hamdi-based argument in the court of appeals — the court did not address it — and therefore it’s unlikely the Supreme Court will grant the Warafi petition on that question.  (The primary issue in Warafi is whether his role as a medic precludes his detention.  Cf. Articles 24 and 28 of the First Geneva Convention of 1949.)

Moreover, I wonder whether the argument will meet with much success if and when the en banc court of appeals or the Supreme Court engages it on the merits, for several related reasons.

First, and most significantly, in section 1021 of the 2012 National Defense Authorization Act Congress statutorily confirmed the understanding that the AUMF affords the Executive the authority—to the extent consistent with, and as informed by, the laws of war—to militarily detain, inter alia, a person who “was part of . . . al-Qaeda, the Taliban, 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 such hostilities in aid of such enemy forces.”  Under this reading, it is only necessary that the enemy forces themselves be “engaged in hostilities against the United States or its coalition partners” and that the government show the individual was “part of” those forces at the time of capture–there is no requirement of proof that the individual himself had been engaged in the conflict.  The NDAA standard expressly includes someone who is part of an enemy force and has “committed a belligerent act” — but it’s not limited to that subset of enemy forces.

Second, the Hamdi plurality’s reading of the AUMF was “based on longstanding law-of-war principles.”  It is doubtful such international law principles would limit detention solely to those enemy forces who have themselves engaged in the conflict.  After all, the historical function of such detention is to incapacitate the individual and thereby render him incapable of remaining an asset to the enemy–to ensure that the enemy can no longer direct him to engage in the fight.  See In re Territo, 156 F.2d 142, 145 (CA9 1946) (“The object of capture is to prevent the captured individual from serving the enemy.”).  That rationale presumably applies just as much to a member of forces who has not yet been ordered to fight as it does to someone who has already been called into the specific service of a particular armed conflict.  Therefore, I assume (but could be wrong about this) that it would be difficult for the GTMO habeas lawyers to demonstrate that states traditionally have abstained from detaining members of enemy forces who had not themselves “engaged in the conflict.”  (On the other hand, the government might likewise have difficulty showing that such a practice of detaining “non-engaged” forces been (in Justice O’Connor’s words) “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,” since presumably most detentions have historically occurred as an incident of military engagement with enemy troops in battle.)

Finally, such a limitation might call into question the result in Hamdi itself.  In that case, the government alleged that, “during the time when Northern Alliance forces were engaged in battle with the Taliban,” the Taliban unit with which Hamdi was affiliated “surrendered” to those Northern Alliance forces, and he “surrender[ed] his Kalishnikov assault rifle” to them.  The government did not offer specific evidence that Hamdi himself (as opposed to Taliban forces more broadly) had “engaged in the conflict.”  (Justice O’Connor’s assumption that Hamdi himself had “engaged in the conflict” appears to have been based upon a quotation from a DOD document included on page 3 of the government’s brief, in which an infelicitously placed comma suggested that DOD required proof that the individual had been engaged in the conflict.  Not that it matters much now, but that was probably not what DOD was trying to represent:  more likely, DOD only required proof that the forces of which the individual was a part had engaged in the conflict.)