Federal Judiciary

Another judge defines detention power

By Akin Gump Supreme Court Practice Group

As the pace quickens among federal judges to carry out the task assigned by the Supreme Court to spell out when the President may detain terrorism suspects at Guantanamo Bay, a fourth judge on Tuesday offered a definition. This time, the Obama Administration lost a bit more of the detention authority that other judges have embraced.

U.S. District Judge John D. Bates (in a ruling found here) became the first trial judge to significantly limit the power to detain individuals based on their “support” of a terrorist network (as opposed to being an active member).  Both the Bush Administration and the Obama Administration had claimed power to hold those who supported terrorist groups, though President Obama’s claim was more limited.

But Judge Bates, in a 22-page opinion in Hamlily v. Obama, 05-763, concluded that detaining an individual who “substantially supports” Al Qaeda or Taliban forces, but is not a part of such a group, “is simply not authorized” by Congress’s post-9/11 resolution (the Authorization for Use of Military Force) “or by the law of war.  Hence, the government’s reliance on ’substantial support’ as a basis for detention independent of membership in the Taliban, al Qaeda or an associated force is rejected.”

The “substantial support” basis for detention was the formulation suggested by the Obama Administration. The Bush Administration had simply claimed power if there was “support” for a terrorist group.

Bates did not rule out totally any reliance upon a concept of support, however.  “Substantial support,” while not “an independent basis for detention,” will be taken into account, he said, in helping to determine who is a “part of” a terrorist organization.

llustrating the point, Bates wrote that “if the evidence demonstraes that an individual did not identify himself as a member, but undertook certain tasks within the command structure or rendered frequent substantive assistance to al Qaeda, whether operational, financial or otherwise, then a court might conclude that he was a ‘part of’ the organization.”  That is to be determined, he said, case by case.

Full post as published by SCOTUSBLOG on May 20, 2009 (boomark / email).