As Steve previously noted over at Lawfare, on Tuesday, the D.C. Circuit affirmed the denial of yet another Guantánamo habeas petition in Ali v. Obama. Specifically, the court concluded that it is more likely than not that Ali was part of an “associated force” of al Qaeda, and may therefore be detained pursuant to the 2001 Authorization for the Use of Military Force (AUMF). That conclusion alone is hardly a noteworthy proposition, particularly given Congress’s affirmation and codification of such detention authority in the FY2012 National Defense Authorization Act (NDAA) as encompassing those who are “’part of’ . . . al Qaeda . . . or associated forces that are engaged in hostilities against the United States.”
But what is noteworthy is the court’s assumption (which Ali’s attorneys appear not to have contested) that the “force” led by Abu Zubaydah qualifies as an “associated force” – despite any evidence that such a force currently exists (to which Ali might thus return). Indeed, whereas Steve’s initial post focused on Judge Edwards’s more attention-grabbing concurrence, upon further inspection, Judge Kavanaugh’s majority opinion is itself quite worthy of more careful attention – attention that illuminates two significant shortcomings: its almost blithe assumption that Abu Zubaydah led an “associated force” of al Qaeda, and its renewed conflation of the distinction between “material” and “substantial” support in a case not raising any relevant question in that regard. As we explain below the fold, even under the D.C. Circuit’s Guantánamo jurisprudence, Ali actually leaves quite a lot to be desired.
I. Abu Zubaydah and “Associated Forces”
In holding that the “force” led by Abu Zubaydah qualifies as an “associated force,” the Ali panel suggested that it was simply following circuit precedent. As Judge Kavanaugh explained: “In a prior case involving a Guantanamo detainee captured in the same Faisalabad guesthouse as Ali, we recognized that the force commanded by Abu Zubaydah constitutes an ‘associated force’ for purposes of the AUMF. See Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. Cir. 2010).” But the court in Barhoumi did not so much “recognize” that fact as it assumed it, because, as Judge Tatel there explained, it was uncontested in that case too: “Nor does Barhoumi dispute that Zubaydah’s militia qualifies as an ‘associated force’ that engaged in hostilities against U.S. or coalition forces.”
As far as the substantive support for its conclusion, the Ali panel claims that Abu Zubaydah is “an ‘associate’ and ‘longtime ally’ of Osama bin Laden, operated terrorist training camps in Afghanistan and led a force that engaged in hostilities against U.S. and Coalition forces.” But it then cites an array of sources, none of which substantiate this critical (bolded) claim.
To be sure, sources cited by the court may well support a claim that Abu Zubaydah – or at least some of his recruits – might have been “part of” (or, in the case of Abu Zubaydah, a close associate of) al Qaeda. They indicate, for example, that Abu Zubaydah and bin Laden cooperated with one another before Zubaydah was captured in 2002; that Zubaydah operated at least one training camp; that he agreed with bin Laden to refer some of his recruits/trainees to join al Qaeda, and that some such recruits did in fact join al Qaeda as operators or trainers. As far as we can tell, however, the court does not cite any evidence that Zubaydah’s so-called “force” – as opposed to these discrete individuals whom he had trained – “engaged in hostilities against U.S. and coalition forces,” let alone that it “entered the fight alongside al Qaeda . . . in hostilities against the United States or its coalition partners,” which is the test the Executive Branch has put forward to identify “associated forces” subject to the AUMF.
Judge Kavanaugh therefore appears to have glossed over the relevant distinction between groups that qualify as “associated forces” because the groups themselves have entered the fight alongside al Qaeda, and groups that may have connections with al Qaeda thanks entirely to the relationship of particular high-level leaders of that group with al Qaeda, but that are not themselves “associated forces” of al Qaeda. One might also characterize this distinction as being between “forces” (of which the evidence suggests Ali was a part) and “associated forces,” with the latter being the critical category for purposes of the AUMF.
This is a critical distinction for any number of reasons, several of which the Obama Administration appears to recognize at least in the context of al Shabaab. In war powers reports to Congress, for example, the President acknowledges taking “direct action in Somalia against members of al-Qa’ida, including those who are also members of al-Shabaab.” This carefully calibrated language appears to distinguish between those members of al Shabaab who are also members of al Qaeda and those that are members of al-Shabaab simplicter, implying that only those al Shabaab members who are also part of al Qaeda are or at least have been in the past are deemed legitimate targets. This in turn suggests that that the al Qaeda bona fides of even those high-value al-Shabaab targets that have been subject to lethal force are not, in and of themselves, sufficient to qualify al Shabaab as an “associated force” of al Qaeda. (Otherwise membership in al Shabaab would be enough to support lethal targeting, and the war powers report need not mention the particular target’s ties to al Qaeda.)
This same nuance should apply to judicial analysis of Abu Zubaydah’s forces. The fact that Abu Zubaydah, or at least some of his recruits, associates with and might arguably qualify as “part of” al Qaeda does not in and of itself make all of his recruits or compatriots an “associated force,” as the Ali panel seems to uncritically assume. That doesn’t mean that Abu Zubaydah’s compatriots are not an “associated force” of al Qaeda under the Obama Administration’s understanding of that term; the evidence necessary to make that determination is not public. But it does mean that the facts cited by the D.C. Circuit in support of the holding that they are don’t actually support such a conclusion.
But even if Zubaydah’s force had entered the fight alongside al Qaeda against the U.S. back in the months after September 11, and thereby did qualify as an associated force of al Qaeda, the D.C. Circuit does not address the separate question whether there remains an armed conflict between the U.S. and Zubaydah’s force today. Indeed, it’s not at all obvious from Judge Kavanaugh’s opinion that Zubaydah’s force even exists any longer, more than 11 years after Zubdayah himself was captured. If so, then Ali is being detained in order to prevent him from rejoining a group that is non-existent. Again, the answer to the ultimate question depends upon evidence to which we’re not privy; perhaps that force still exists and is engaged in an armed conflict with the U.S., which might explain why Ali’s counsel did not contest the issue. Our point is merely that the D.C. Circuit makes no effort at all to demonstrate that Ali was part of an armed force with which we are currently in an armed conflict — the logical and legal predicate to military detention pursuant to the AUMF. Based solely on the analysis and facts offered by the court, Ali’s continued detention does not appear to be lawful.
II. “Substantial” vs. “Material” Support
On a different topic, we (especially Steve) can’t pass up the opportunity to point out the flaws in the court’s attempt to resuscitate “purposeful and material support” as an independent and sufficient basis for detention—a deeply misguided enterprise that the D.C. Circuit had previously appeared to forswear, however implicitly. Here’s footnote 1 of Judge Kavanaugh’s opinion in Ali:
As this Court has explained in prior cases, the President may also detain individuals who substantially support al Qaeda, the Taliban, or associated forces in the war. The National Defense Authorization Act for Fiscal Year 2012 expressly permits military detention of a “person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” Pub. L. No. 112-81, § 1021, 125 Stat. 1298, 1562 (2011). And our earlier cases, citing the Military Commissions Act of 2009, permit military detention of a person who was part of or “purposefully and materially” supported al Qaeda, the Taliban, or associated forces in the war. Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010) (quoting 10 U.S.C. § 948a(7)); see Almerfedi v. Obama, 654 F.3d 1, 3 n.2 (D.C. Cir. 2011); Uthman v. Obama, 637 F.3d 400, 402 n.2 (D.C. Cir. 2011).
For starters, this footnote is pure, unnecessary dicta, since the government’s argument in Ali, as in every Guantánamo habeas case to date, is that the detainee was “part of” enemy forces – the government did not rely upon a “support” theory for detention.
More importantly, it’s misleading dicta, in at least two respects. First, it suggests that “substantial support,” without important qualifiers, may be enough to justify detention. But as Steve and Marty Lederman explained when the 2012 NDAA was enacted, the better view – and the view the Executive has articulated and that Congress has ratified – is that “substantial support” should be construed to authorize detention only of “those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.” While we don’t purport to identify the range of individuals who might meet this standard, it certainly is narrower than the purposeful and material support standard that the Ali footnote suggests.
Second, the footnote endeavors to revive the mistaken notion, first offered in the panel opinion in al-Bihani, that in addition to AUMF/NDAA authority, the Military Commissions Act of 2006 (as amended in 2009) provides affirmative detention authority – and authorizes the detention of a person who has ‘purposefully and materially’ supported al Qaeda, the Taliban, or associated forces.” Here’s what Steve and Marty wrote about this deeply troubled assertion in their earlier post:
[T]here are at least two problems with this argument: First, it doesn’t follow logically that those who can lawfully be tried by a military commission are a subset of those who can be lawfully detained without trial—the two categories overlap but are not coterminous. For example, persons who are not detainable for the duration of hostilities can nevertheless commit offenses against the laws of war triable by commissions; and conversely, as in all conflicts, belligerent forces who have not committed any offenses under the laws of war can be detained for purposes of incapacitation while hostilities are ongoing. Second, and perhaps more importantly, specific language in the 2009 MCA conference report explains that the statute’s jurisdictional definition of who may be tried, on which Judge Brown relied, “is included for the purpose of establishing persons subject to trial by military commission in accordance with section 948c, of title 10, United States Code, and is not intended to address the scope of the authority of the United States to detain individuals in accordance with the laws of war or for any other purpose.” . . .
[I]n the definition of “covered person” in section 1021 [of the NDAA], Congress did not opt for the MCA “purposeful and material support” formulation that Judges Brown and Kavanaugh embraced in [al-Bihani]—which does not appear in the statute or (as far as we can tell) in its legislative history—but instead adopted the Administration’s “substantial support” formulation from its March 13, 2009 brief, a brief that (as explained above) emphasized that the laws of war inform the scope of the government’s detention power and that explained that in order to determine whether an individual is detainable, including as a “supporter,” it may be necessary to look to permissible detention practices that would be “appropriately analogous . . . in a traditional international armed conflict.”
Perhaps because of these concerns, the D.C. Circuit in subsequent decisions after al-Bihani had appeared to retreat from an understanding of the government’s detention authority that would encompass purposeful and material support, without more, begging the question of why, in a case in which it was not presented, the court of appeals would nevertheless re-raise the issue.
Ultimately, then, Ali is more than just another D.C. Circuit Guantánamo case in which the government prevailed; it’s a case in which the government prevailed on a theory for which the court of appeals provides no evidentiary support, and in which the court of appeals—sua sponte—has unnecessarily sought to resuscitate a view of the government’s detention authority broader than anything the Obama Administration has sought or claimed.