Judge John Bates of the US District Court for the District of Columbia ruled May 19 on the limits of detaining terrorism suspects at Guantánamo Bay who are not actual members of terrorist groups under the 2001 Authorization for Use of Military Force (AUMF), rejecting the Obama administration's "substantial support" standard. The opinion rejected the government's argument that an individual who "substantially supports" a terrorist organization such as the "Taliban, al-Qaeda or an associated force" but is not a member can be detained pursuant to the AUMF.

The court also found that the government's detention authority does not extend to individuals who have only "directly supported hostilities," holding that such a detention power would be inconsistent with the law of war although evidence of such support could be used to determine whether an individual had "committed a belligerent act." Bates limited the scope of the government's detention authority over individuals who merely support terrorism groups, stating:

the Court rejects the concept of "substantial support" as an independent basis for detention. Likewise, the Court finds that "directly support[ing] hostilities" is not a proper basis for detention. In short, the Court can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of "support" as a valid ground for detention.

Detention based on substantial or direct support of the Taliban, al-Qaeda or associated forces, without more, is simply not warranted by domestic law or the law of war.

Bates said that, despite rejecting "substantial support" as an independent basis for detaining an individual, evidence of such support may be factored into a functional test to determine if an individual is part of a terrorist organization.

The US Supreme Court acknowledged in Hamdi v. Rumsfeld that the district courts would have to address and define the scope of the government's detention authority "as subsequent cases are presented to them." Other federal judges in the District of Columbia have upheld the "substantially supported" standard proposed by the Obama administration. Earlier this month, Judge Gladys Kessler applied the "substantially supported" standard for reviewing habeas petitions filed by detainees, making no reference to the "enemy combatant" classification used previously. Last month, Judge Reggie Walton adopted the "substantially supported" standard for authorizing and reviewing detention of terrorism suspects at Guantanamo. Rights advocates had lobbied aggressively to move away from the "enemy combatant" classification, which was effectuated as part of the current administration's general review of US detention policies, put in motion by a series of executive orders issued in late January. (Jurist, May 20)

See our last post on the torture scandal.

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