TRIALS BY FIRE - Belfer Center for Science and International Affairs

live.belfercenter.org

TRIALS BY FIRE - Belfer Center for Science and International Affairs

ization—specifically the length and manner of detention that it authorizes.Detention policy critics question whether the AUMF in fact authorizes indefinitedetention of al Qaeda members. There is also debate over whether itauthorizes the detention of anyone affiliated with a terrorist organization, oronly those who take part in direct hostilities. 327Hamdi v. Rumsfeld (2004)In Hamdi v. Rumsfeld, the Supreme Court explicitly upheld the constitutionalityof detention of enemy combatants pursuant to the AUMF. 328 The caseinvolved the detention of Yaser Hamdi, an American citizen held in a US militaryjail on US soil due to his Taliban ties. The Court held that the Presidenthad the authority under the AUMF to detain Hamdi even though the bill containsno explicit detention provision.The Court also ruled that the US could detain suspected Taliban members—andmore broadly, al Qaeda members—for as long as the US is actively engaged incombat in Afghanistan. Specifically, the Court declared that since “active combatoperations against Taliban fighters apparently are ongoing in Afghanistan . .. The United States may detain, for the duration of these hostilities, individuals .. . who ‘engaged in an armed conflict against the United States.’”2009 Obama Administration MemoIn March 2009, only a few months after President Obama’s inauguration, theJustice Department filed a memorandum with a federal district court layingout its position with regard to the Guantanamo Bay detainees. 329 Specifically,the memorandum stipulated that it had authority to detain Taliban and al Qaedamembers under the AUMF. Furthermore, even members of these militantgroups not actively engaged in armed conflict could be detained, as a differentinterpretation “would ignore the United States’ experience in this conflict, inwhich Taliban and al Qaeda forces have melted into the civilian populationand then regrouped to relaunch vicious attacks.”The Administration also asserted that international law does not prohibitthese detentions. The Justice Department did, however, promise that it wouldestablish comprehensive new guidelines for detentions.116 Trials by Fire: Counterterrorism and the Law

More magazines by this user
Similar magazines