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8.1.3.1 Detention Authority. The legal authority to detain outside the context ofthe internment of POWs or protected persons may be addressed in ad hoc internationalinstruments. Even if not specifically addressed in an international legal instrument, the legalauthority to detain may sometimes be understood as an incident of general authorities conferredby that instrument, such as a U.N. Security Council Resolution authorizing military operations oran agreement authorizing one State to conduct military operations on the territory of anotherState. 5 In many cases, the legal authority to detain would be understood as an exercise of theDetaining Power’s sovereign rights under international law rather than, or in addition to,authorities arising from an international legal instrument. 6The authority to detain is often understood as an incident to more general authoritiesbecause detention is fundamental to waging war or conducting other military operations (e.g.,noncombatant evacuation operations, peacekeeping operations). 7 Detention operations may bemilitarily necessary to achieve the object of those operations. 8 In addition, the right to use forcein self-defense during such operations includes at least a limited right to detain for securityreasons. 9 In fact, it may be inhumane to conduct military operations without some provision forthose who are detained incident to the operations (e.g., being prepared to conduct detention5 For example, Brigadier General Bantz J. Craddock, Task Force Falcon, Policy Letter #TFF-04, DetentionProcessing 1 (Aug. 3, 1999), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATEGENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, LAW AND MILITARY OPERATIONS IN KOSOVO, 1999-2001:LESSONS LEARNED FOR JUDGE ADVOCATES 281 (2001) (“Pursuant to United Nations Security Council Resolution1244, KFOR [Kosovo Force] has the responsibility to ensure public safety and order until the international civilpresence can take responsibility for this task. Sergio Vieira de Mello reiterated that, ‘In performing this task, KFORhas the right to apprehend and detain persons who are suspected of having committed offenses against public safetyand order, including the commission of such serious offenses as murder, rape, kidnapping or arson, or war crimes(enclosure).’ This memorandum outlines the procedures to be employed in the Multi-National Brigade-East Area ofResponsibility (MNB-E AOR) for the detention and release of civilians.”).6 Refer to § 1.3.3.1 (Law of War as Prohibitive Law).7 See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality) (“The AUMF authorizes the President to use‘all necessary and appropriate force’ against ‘nations, organizations, or persons’ associated with the September 11,2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United Statesin Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist networkresponsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude thatdetention of individuals falling into the limited category we are considering, for the duration of the particularconflict 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.”); Moyer v. Peabody, 212 U.S. 78,84 (1909) (Holmes, J.) (“The constitution [of the State of Colorado] is supplemented by an act providing that ‘whenan invasion of or insurrection in the state is made or threatened, the Governor shall order the national guard to repelor suppress the same.’ Laws of 1897, c. 63, Art. 7, § 2, p. 204. That means that he shall make the ordinary use of thesoldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure ofseizing the bodies of those whom he considers to stand in the way of restoring peace.”).8 See, e.g., Copenhagen Process: Principles and Guidelines 3 (“Participants recognised that detention is anecessary, lawful and legitimate means of achieving the objectives of international military operations;”).9 For example, Detainee Review Procedures at Bagram Theater Internment Facility (BTIF), Afghanistan, enclosureto Phillip Carter, Deputy Assistant Secretary of Defense for Detainee Policy, Letter to Chairman Carl Levin, Jul. 14,2009 (“(U) U.S. Forces operating under Operation Enduring Freedom (OEF) authority are authorized to detainpersons temporarily, consistent with the laws and customs of war (e.g., in self-defense or for force protection).”).488