More on the Obama Executive Order: AP I, Hamdan, and the Scope of the Armed Conflict

One lesser-noticed issue raised by the new Guantanamo executive order (see my earlier post here) concerns this statement in the accompanying Fact Sheet: “The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.” The statement refers to Article 75 of Additional Protocol I to the Geneva Conventions, which provides basic protections to individuals detained in an international armed conflict (i.e., a conflict between nation states).

Lawfare has an interesting discussion of what the administration may—or may not—have meant—and whether it intended to apply Article 75 to the armed conflict with al-Qaeda, the Taliban, and associated forces (a/k/a the “war on terror”). As the various posts explain (see, e.g., John Bellinger here and Jack Goldsmith here), the confusion arises because, under the Supreme Court’s decision in Hamdan v. Rumsfeld, the conflict with al Qaeda et al. is a non-international armed conflict.

The posts persuasively argue why the administration probably did not intend to apply Article 75 to the armed conflict against al Qaeda and thus, not to detainees held at Guantanamo (or Bagram for that matter). Several, however, assume that in Hamdan the Court ruled that the conflict with al Qaeda is a non-international armed conflict.  Not quite.

Hamdan reserved decision on whether there was, as the government had argued, an armed conflict with al Qaeda separate from the international armed with the Taliban (Query with the Taliban’s fall what that might mean). More importantly, Hamdan assumed arguendo only that there was a non-international armed conflict with al Qaeda in Afghanistan. It did not consider whether other aspects of the global “war on terror” rose to the level of armed conflict. Rather, the Court held only that Common Article 3 of the Geneva Conventions provides a baseline in all armed conflicts, regardless of their designation.

Why does this matter? In theory, a good deal, since it would affect, for example, the government’s authority under the 2001 Authorization for Use of Military Force (AUMF) to detain individuals seized outside the theater of armed conflict in or around Afghanistan. It might also affect the government’s justifications for engaging in Predator drone strikes in countries such as Yemen, highlighted by the recent Al-Aulaqi litigation involving an American citizen reportedly placed on the U.S. target list. (See, for example, Mary Ellen O’Connell’s declaration submitted in al-Aulaqi).

In practice, it may matter less. To the extent cases testing the scope of the armed conflict against al Qaeda actually go to decision (al-Aulaqi was dismissed on standing and political question grounds, and is not being appealed), courts might well agree with the administration’s position.  The Supreme Court’s decision in Boumediene v. Bush, issued two years after Hamdan, didn’t question it, and the current Guantanamo habeas litigation working its way through the lower courts has not really pressed the question of whether the armed conflict extends beyond Afghanistan. But, it’s worth remembering that the issue of where, legally speaking, the United States is at war with al Qaeda remains an open one, Hamdan notwithstanding.

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