Guantanamo Habeas Review: Are the D.C. District Court's Decisions Consistent with IHL Internment Standards?

Article excerpt

After the Supreme Court ruled in 2008 in Boumediene v. Bush that the detainees at the Guantanamo Bay detention facility are entitled to the privilege of habeas corpus to challenge the legality of their detention, the D.C. District Court started to take action on the hundreds of petitions filed. In these habeas proceedings, the court has faced the threshold legal question of the scope of the government's authority to detain pursuant to the Authorization for Use of Military Force as informed by the law of war. This article reviews how the court has delimited the permissible bounds of the government's detention authority, specifically focusing on whether the court's decisions are consistent with the internment standards under the law of war, international humanitarian law (IHL). This analysis seeks to assess whether the court's application of the Bush Administration's definition of "enemy combatant" or the new definition provided by the Obama Administration is broader or narrower than the IHL standards.

I. INTRODUCTION

After the Supreme Court held in Rasul v. Bush that statutory habeas jurisdiction extended to Guantanamo, (1) those detained at the Guantanamo Bay detention facility filed hundreds of petitions. No action, however, was taken on the petitions until the Supreme Court ruled in 2008 in Boumediene v. Bush that Guantanamo detainees are "entitled to the privilege of habeas corpus to challenge the legality of their detention." (2) As of this writing, the D.C. District Court has ruled on thirty-five petitions, granting twenty-nine, under both the Bush and Obama Administrations. (3)

In these habeas proceedings, the D.C. District Court has faced the threshold legal question: "what is the scope of the government's authority to detain these, and other, detainees pursuant to the Authorization for Use of Military Force ..., as informed by the law of war?" (4) This article reviews how the District Court has delimited "'[t]he permissible bounds' of the government's detention authority 'as subsequent cases are presented to them.'" (5) Specifically, the focus is on whether the D.C. District Court's decisions are consistent with the internment standards under the law of war, international humanitarian law (IHL). As internment, (6) the deprivation of a person's liberty without criminal charge as a preventive security measure, is an extreme measure even in armed conflict, IHL set limits on its use. This analysis seeks to assess whether application by the D.C. District Court of the Bush Administration's definition of "enemy combatant" or the new definition provided by the Obama Administration is broader or narrower than the IHL standards.

The applicable conventional IHL rules vary depending upon whether an armed conflict is international or non-international. There exist fewer rules applicable to non-international armed conflict and, in contrast to IHL applicable to international armed conflict, there are no conventional IHL rules providing a basis for internment in non-international armed conflicts. The Supreme Court in Hamdan v. Rumsfeld concluded that, at the very least, Article 3 common to the four Geneva Conventions applies to the U.S. conflict with al-Qaeda because it is a "conflict not of an international character." (7) Many of the individuals currently held at Guantanamo were detained in relation to that conflict. Thus, much of the discussion on internment in this article concerns the extent to which analogous application of IHL internment standards applicable to international armed conflict is appropriate in non-international armed conflict and, if so, in which form. (8)

The first section of this article provides background by briefly describing the bases for internment under conventional IHL and explaining how IHL of international armed conflict could be analogously applied to non-international armed conflicts in order to address internment. The following section discusses the executive branch's practice of internment at Guantanamo, assessing both the asserted legal bases for internment and the various internment standards in relation to IHL. …