In Re Guantanamo Bay Detainee Litigation Dc Respondents Memo Re Detention Authority 2009

RESPONDENTS’ MEMORANDUM REGARDING
THE GOVERNMENT’S DETENTION AUTHORITY RELATIVE
TO DETAINEES HELD AT GUANTANAMO BAY

INTRODUCTION
Through this submission, the Government is refining its position with respect to its
authority to detain those persons who are now being held at Guantanamo Bay. The United
States bases its detention authority as to such persons on the Authorization for the Use of
Military Force (“AUMF”), Pub. L. 107-40, 115 Stat. 224 (2001). The detention authority
conferred by the AUMF is necessarily informed by principles of the laws of war. Hamdi v.
Rumsfeld, 542 U.S. 507, 521 (2004) (plurality). The laws of war include a series of prohibitions
and obligations, which have developed over time and have periodically been codified in treaties
such as the Geneva Conventions or become customary international law. See, e.g., Hamdan v.
Rumsfeld, 548 U.S. 557, 603-04 (2006).
The laws of war have evolved primarily in the context of international armed conflicts
between the armed forces of nation states. This body of law, however, is less well-codified with
respect to our current, novel type of armed conflict against armed groups such as al-Qaida and
the Taliban. Principles derived from law-of-war rules governing international armed conflicts,
therefore, must inform the interpretation of the detention authority Congress has authorized for
the current armed conflict. Accordingly, under the AUMF, the President has authority to detain
persons who he determines planned, authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, and persons who harbored those responsible for the September
11 attacks. The President also has the authority under the AUMF to detain in this armed conflict
those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous
circumstances in a traditional international armed conflict, render them detainable.
Thus, these habeas petitions should be adjudicated under 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.
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.
There are cases where application of the terms of the AUMF and analogous principles
from the law of war will be straightforward. It is neither possible nor advisable, however, to
attempt to identify, in the abstract, the precise nature and degree of “substantial support,” or the
precise characteristics of “associated forces,” that are or would be sufficient to bring persons and
organizations within the foregoing framework. Although the concept of “substantial support,”
for example, does not justify the detention at Guantanamo Bay of those who provide unwitting
or insignificant support to the organizations identified in the AUMF, and the Government is not
asserting that it can detain anyone at Guantanamo on such grounds, the particular facts and
circumstances justifying detention will vary from case to case, and may require the identification
and analysis of various analogues from traditional international armed conflicts. Accordingly,
the contours of the “substantial support” and “associated forces” bases of detention will need to
be further developed in their application to concrete facts in individual cases.
This position is limited to the authority upon which the Government is relying to detain
the persons now being held at Guantanamo Bay. It is not, at this point, meant to define the
contours of authority for military operations generally, or detention in other contexts. A
forward-looking multi-agency effort is underway to develop a comprehensive detention policy
with respect to individuals captured in connection with armed conflicts and counterterrorism
operations, and the views of the Executive Branch may evolve as a result. See Declaration of
Attorney General Eric H. Holder, Jr., ¶¶ 3, 11. The effort has been undertaken at the direction of

the President and is a major priority of the Executive Branch. Id., ¶ 3. The Government will
apprise the Court of relevant developments resulting from this ongoing process.
DISCUSSION
In response to the attacks of September 11, 2001, Congress authorized 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.” AUMF, § 2(a). The September 11 attacks were carried out by al-Qaida, which was
harbored by the Taliban regime in Afghanistan. In October 2001, under the authority of the
AUMF, the United States launched Operation Enduring Freedom to remove the Taliban regime
from power and to suppress al-Qaida. The United States and its coalition partners continue to
fight resurgent Taliban and al-Qaida forces in this armed conflict. Below, we set out the
Government’s position regarding the detention authority provided by the AUMF as it applies to
those captured during that armed conflict and held at Guantanamo Bay.
I.

THE AUMF GIVES THE EXECUTIVE POWER TO DETAIN
CONSISTENT WITH THE LAW OF ARMED CONFLICT.
The United States can lawfully detain persons currently being held at Guantanamo Bay

who were “part of,” or who provided “substantial support” to, al-Qaida or Taliban forces and
“associated forces.” This authority is derived from the AUMF, which empowers the President to
use all necessary and appropriate force to prosecute the war, in light of law-of-war principles that
inform the understanding of what is “necessary and appropriate.” Longstanding law-of-war
principles recognize that the capture and detention of enemy forces “are ‘important incident[s] of
war.’” Hamdi, 542 U.S. at 518 (quoting Ex Parte Quirin, 317 U.S. 1, 28 (1942)).
3

The AUMF authorizes use of military force against those “nations, organizations, or
persons [the President] 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.” AUMF, § 2(a). By explicitly authorizing the use of military force
against “nations, organizations, or persons” that were involved in any way in the September 11
attacks (or that harbored those who were), the statute indisputably reaches al-Qaida and the
Taliban. Indeed, the statute’s principal purpose is to eliminate the threat posed by these entities.
Under international law, nations lawfully can use military force in an armed conflict
against irregular terrorist groups such as al-Qaida. The United Nations Charter, for example,
recognizes the inherent right of states to use force in self defense in response to any “armed
attack,” not just attacks that originate with states. United Nations Charter, art. 51. The day after
the attacks, the United Nations Security Council adopted Resolution 1368, which affirmed the
“inherent right of individual or collective self-defence in accordance with the Charter” and
determined “to combat by all means threats to international peace and security caused by
terrorist acts.” U.N. General Assembly Security Council Resolution of Sept. 12, 2001
(S/RES/1368). “Since no one was seriously suggesting a State was behind the attacks, the
Council was by definition implicitly acknowledging the acceptability of using military force
against terrorists under the law of self-defense.” Michael N. Schmitt, U.S. Security Strategies: A
Legal Assessment, 27 Harv. J.L. & Pub. Pol’y 737, 748 (2004). The North Atlantic Treaty
Organization and the Organization of American States treated the attacks as “armed attacks” for
purposes of their collective self-defense provisions.1 The AUMF invokes the internationally
1

See Organization of American States, Meeting of Consultation of Ministers of Foreign
Affairs, Terrorist Threat to the Americas (Sept. 21, 2001), http://www.oas.org/OASpage/
4

recognized right to self-defense. See AUMF, Preamble (it is “both necessary and appropriate
that the United States exercise its rights to self-defense and to protect United States citizens both
at home and abroad”). Other nations joined or cooperated closely with the United States’
military campaign against al-Qaida and the Taliban. See Schmitt, 27 Harv. J.L. & Pub. Pol’y at
748-49.
The United States has not historically limited the use of military force to conflicts with
nation-states:
[A] number of prior authorizations of force have been directed at non-state actors,
such as slave traders, pirates, and Indian tribes. In addition, during the
Mexican-American War, the Civil War, and the Spanish-American War, U.S.
military forces engaged military opponents who had no formal connection to the
state enemy. Presidents also have used force against non-state actors outside of
authorized conflicts.
Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism,
118 Harv. L. Rev. 2047, 2066-67 (2005) (citing U.S. use of military force in the Chinese Boxer
Rebellion, against the Mexican rebel leader Pancho Villa, and in the 1998 cruise missile attacks
against al-Qaida targets in Sudan and Afghanistan).
Thus, consistent with U.S. historical practice, and international law, the AUMF
authorizes the use of necessary and appropriate military force against members of an opposing
armed force, whether that armed force is the force of a state or the irregular forces of an armed
group like al-Qaida. Because the use of force includes the power of detention, Hamdi, 542 U.S.
at 518, the United States has the authority to detain those who were part of al-Qaida and Taliban
forces. Indeed, long-standing U.S. jurisprudence, as well as law-of-war principles, recognize
that members of enemy forces can be detained even if “they have not actually committed or

crisis/RC.24e.htm; North Atlantic Council, Statement by the North Atlantic Council (Sept. 12,
2001), http://www.nato.int/docu/pr/2001/p01-124e.htm; Statement by NATO Secretary General,
Lord Robertson (Oct. 2, 2001), http://www.nato.int/docu/speech/2001/ s011002a.htm.
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attempted to commit any act of depredation or entered the theatre or zone of active military
operations.” Ex parte Quirin, 317 U.S. at 38; Khalid v. Bush, 355 F. Supp. 2d 311, 320 (D.D.C.
2005), rev’d on other grounds sub nom., Boumediene v. Bush, 128 S. Ct. 2229 (2008); see also
Geneva Convention (III) Relative to the Treatment of Prisoners of War of Aug. 12, 1949, art. 4,
6 U.S.T.S. 3316 (contemplating detention of members of state armed forces and militias without
making a distinction as to whether they have engaged in combat). Accordingly, under the
AUMF as informed by law-of-war principles, it is enough that an individual was part of al-Qaida
or Taliban forces, the principal organizations that fall within the AUMF’s authorization of
force.2
Moreover, because the armed groups that the President is authorized to detain under the
AUMF neither abide by the laws of war nor issue membership cards or uniforms, any
determination of whether an individual is part of these forces may depend on a formal or
functional analysis of the individual’s role. Evidence relevant to a determination that an
individual joined with or became part of al-Qaida or Taliban forces might range from formal
membership, such as through an oath of loyalty, to more functional evidence, such as training
with al-Qaida (as reflected in some cases by staying at al-Qaida or Taliban safehouses that are
2

Moreover, courts should defer to the President’s judgment that the AUMF, construed in
light of the law-of-war principles that inform its interpretation, entitle him to treat members of
irregular forces as state military forces are treated for purposes of detention. See AUMF, § 2(a)
(authorizing the President to use “all necessary and appropriate force” against those that “he
determines” planned, authorized, committed, or aided the September 11 terrorist attacks or
harbored those organizations); The Paquete Habana, 175 U.S. 677, 700 (1900) (court construes
customary international law de novo only in the absence of a “controlling executive or legislative
act or judicial decision”). A deferential approach in this context is consistent with the
commonsense understanding that “[t]he war power of the national government ‘is the power to
wage war successfully,’” Lichter v. United States, 334 U.S. 742, 767 n.9 (1948) (citation
omitted), as well as the Supreme Court’s directive in Boumediene that “[i]n considering both the
procedural and substantive standards used to impose detention to prevent acts of terrorism,
proper deference must be accorded to the political branches,” 128 S.Ct. at 2276 (2008) (citing
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936)).
6

regularly used to house militant recruits) or taking positions with enemy forces. In each case,
given the nature of the irregular forces, and the practice of their participants or members to try to
conceal their affiliations, judgments about the detainability of a particular individual will
necessarily turn on the totality of the circumstances.
Nor does the AUMF limit the “organizations” it covers to just al-Qaida or the Taliban. In
Afghanistan, many different private armed groups trained and fought alongside al-Qaida and the
Taliban. In order “to prevent any future acts of international terrorism against the United
States,” AUMF, § 2(a), the United States has authority to detain individuals who, in analogous
circumstances in a traditional international armed conflict between the armed forces of opposing
governments, would be detainable under principles of co-belligerency.
Finally, the AUMF is not limited to persons captured on the battlefields of Afghanistan.
Such a limitation “would contradict Congress’s clear intention, and unduly hinder both the
President’s ability to protect our country from future acts of terrorism and his ability to gather
vital intelligence regarding the capability, operations, and intentions of this elusive and cunning
adversary.” Khalid, 355 F. Supp. 2d at 320; see also Ex parte Quirin, 317 U.S. at 37-38. Under
a functional analysis, individuals who provide substantial support to al-Qaida forces in other
parts of the world may properly be deemed part of al-Qaida itself. Such activities may also
constitute the type of substantial support that, in analogous circumstances in a traditional
international armed conflict, is sufficient to justify detention. Cf. Boumediene v. Bush, 579 F.
Supp. 2d 191, 198 (D.D.C. 2008) (upholding lawfulness of detaining a facilitator who planned to
send recruits to fight in Afghanistan, based on “credible and reliable evidence linking Mr.
Bensayah to al-Qaida and, more specifically, to a senior al-Qaida facilitator” and “credible and
reliable evidence demonstrating Mr. Bensayah’s skills and abilities to travel between and among
countries using false passports in multiple names”).
7

Accordingly, the AUMF as informed by law-of-war principles supports the detention
authority that the United States is asserting with respect to the Guantanamo detainees.
II.

READ IN LIGHT OF THE LAWS OF WAR, THE AUMF AUTHORIZES
THE NATION TO USE ALL NECESSARY AND APPROPRIATE
MILITARY FORCE TO DEFEND ITSELF AGAINST THE
IRREGULAR FORCES OF AL-QAIDA AND THE TALIBAN.
Petitioners have sought to restrict the United States’ authority to detain armed groups by

urging that all such forces must be treated as civilians, and that, as a consequence, the United
States can detain only those “directly participating in hostilities.”3 The argument should be
rejected. Law-of-war principles do not limit the United States’ detention authority to this limited
category of individuals. A contrary conclusion would improperly reward an enemy that violates
the laws of war by operating as a loose network and camouflaging its forces as civilians.
It is well settled that individuals who are part of private armed groups are not immune
from military detention simply because they fall outside the scope of Article 4 of the Third
Geneva Convention, which defines categories of persons entitled to prisoner–of-war status and
treatment in an international armed conflict. See Third Geneva Convention, art. 2, 4. Article 4
does not purport to define all detainable persons in armed conflict. Rather, it defines certain
categories of persons entitled to prisoner-of-war treatment. Id., art. 4. As explained below, other
principles of the law of war make clear that individuals falling outside Article 4 may be
detainable in armed conflict. Otherwise, the United States could not militarily detain enemy
3

The “direct participation in hostilities” standard is taken from two additional protocols
to the Geneva Conventions that the United States has not ratified. See Additional Protocols of 8
June 1977 to the Geneva Conventions of 12 Aug. 1949 and Relating to the Protection of Victims
of International Armed Conflicts (Additional Protocol I), art. 51(3), 1125 U.N.T.S 3 (“Civilians
shall enjoy the protection afforded by this Section unless and for such time as they take a direct
part in hostilities.”); Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 Aug.
1949 and relating to the Protection of Victims of Non-International Armed Conflicts (Additional
Protocol II), art. 13(3), 1125 U.N.T.S. 609. The United States recognizes the standard for
targeting but its scope is unsettled.
8

forces except in limited circumstances, contrary to the plain language of the AUMF and the lawof-war principle of military necessity.
For example, Common Article 3 of the Geneva Conventions provides standards for the
treatment of, among others, those persons who are part of armed forces in non-international
armed conflict and have been rendered hors de combat by detention. Third Geneva Convention,
art. 3. Those provisions pre-suppose that states engaged in such conflicts can detain those who
are part of armed groups. Likewise, Additional Protocol II to the Geneva Conventions expressly
applies to “dissident armed forces” and “other organized armed groups” participating in certain
non-international armed conflicts, distinguishing those forces from the civilian population.
Additional Protocol II, art. 1(1), 13.
Moreover, the Commentary to Additional Protocol II draws a clear distinction between
individuals who belong to armed forces or armed groups (who may be attacked and, a fortiori,
captured at any time) and civilians (who are immune from direct attack except when directly
participating in hostilities). That Commentary provides that “[t]hose who belong to armed forces
or armed groups may be attacked at any time.” See ICRC, Commentary on the Additional
Protocols of 8 June 1977 to the Geneva Conventions of 12 Aug. 1949 and Relating to the
Protection of Victims of Non-International Armed Conflicts (Additional Protocol II), ¶ 4789,
http://www.icrc.org/ihl.nsf/ COM/475- 760019?OpenDocument (emphasis added).
Accordingly, neither the Geneva Conventions nor the Additional Protocols suggest that the
“necessary and appropriate” force authorized under the AUMF is limited to al-Qaida leadership
or individuals captured directly participating in hostilities, as some petitioners have suggested.
Finally, for these reasons, it is of no moment that someone who was part of an enemy
armed group when war commenced may have tried to flee the battle or conceal himself as a
civilian in places like Pakistan. Attempting to hide amongst civilians endangers the civilians and
9

violates the law of war. Cf. ICRC, Commentary on the Additional Protocols of 8 June 1977 to
the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of
International Armed Conflicts (Additional Protocol I), ¶ 1944, http://www.icrc.org/ihl.nsf/
COM/470-750065?OpenDocument (“Further it may be noted that members of armed forces
feigning civilian non-combatant status are guilty of perfidy.”). Such conduct cannot be used as a
weapon to avoid detention. A different rule would ignore the United States’ experience in this
conflict, in which Taliban and al-Qaida forces have melted into the civilian population and then
regrouped to relaunch vicious attacks against U.S. forces, the Afghan government, and the
civilian population.
III.

THE GOVERNMENT IS CONTINUING TO DEVELOP A
COMPREHENSIVE DETENTION POLICY.
Through this filing, the Government has met the Court’s March 13, 2009 deadline to

offer a refinement of its position concerning its authority to detain petitioners. The Court should
be aware, however, that the Executive Branch has, at the President’s direction, undertaken
several forward-looking initiatives that may result in further refinements. Although the
Government recognizes that litigation will proceed in light of today’s submission, it nevertheless
commits to apprising the Court of any relevant results of this ongoing process.
On January 22, 2009, the President issued two Executive Orders initiating Reviews
addressing issues related to prospective detention policy. See Exec. Order No. 13492, 74 Fed.
Reg. 4897 (Jan. 22, 2009); Executive Order 13493, 74 Fed. Reg. 4901 (Jan. 22, 2009). This
effort is a Government priority. See Holder Decl. ¶ 3.
Pursuant to Executive Order 13,493, the Government is undertaking “a comprehensive
review of the lawful options available to the United States with respect to the apprehension,
detention, trial, transfer, release, or other disposition of individuals captured or apprehended in

connection with armed conflicts and counterterrorism operations, and to identify such options as
are consistent with the national security and foreign policy interests of the United States and the
interests of justice.” Exec. Order No. 13,493, § 1(e). Fully developing the Government’s
prospective detention policy implicates important national security interests, including
diplomatic interests. Exec. Order No. 13,492, § 2(b); Holder Decl. ¶ 11. Because the detainees
are citizens of foreign countries, these detentions and their legal justification necessarily affect
the United States’ relations with other nations. Cooperation of the country’s international
partners is central to the United States’ anti-terrorism efforts. And detention policy raises
important national security and humanitarian issues. See id. Such issues are also being
considered in connection with Executive Order 13,492, pursuant to which the Government is
examining “the factual and legal bases for the continued detention of all individuals currently
held at [Guantanamo Bay]” on an ongoing basis. Exec. Order No. 13,492, § 2(d). Highlighting
the urgency and importance of the Review, the Executive Order required that the Review process
“commence immediately.” Id. at § 4(a); see also id. at §§ 2(b), 2(d), 4(c)(1), 4(c)(2), 4(c)(4).
The Government commits to apprise the Court of any relevant results of these ongoing
processes.
CONCLUSION
For the foregoing reasons, the Government’s new explication of who may be detained in
this armed conflict is consistent with the AUMF and the laws of war that inform the scope of
“necessary and appropriate” force the AUMF authorizes the President to use. If the judges of the
Court desire oral argument relating to the scope of the Government’s detention authority in these
cases, the Government urges the Court to consider conducting a single argument in a
consolidated manner before the Court and that the Court endeavor, to the extent possible, to
reach a common ruling regarding the framework to apply to these cases.
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Dated: March 13, 2009

Respectfully submitted,
MICHAEL F. HERTZ
Acting Assistant Attorney General
JOSEPH H. HUNT
Director
TERRY M. HENRY
Assistant Branch Director
DAVID J. ANDERSON
Counselor to the Assistant Attorney General

/s/ Christopher Hardee
PAUL AHERN
CHRISTOPHER HARDEE (D.C. Bar No. 458168)
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel: (202) 305-8356
Fax: (202) 616-8470
Attorneys for Respondents