Gherebi v. Obama.

AuthorSmith, Amelia
PositionPresidential power to detain terrorist suspects

Introduction

Gherebi v Obama (1) is the first case since the inauguration of President Obama to explore the scope of presidential authority to detain terrorist suspects. The fourteen applicants, who sought writs of habeas corpus, were all in detention in Guantanamo Bay.

The central issue before the District Court of the District of Columbia was the scope of the Authorization for Use of Military Force Against Terrorists ('AUMF'), (2) passed by Congress exactly one week after the attacks against the United States on 11 September 2001, ('September 11') to allow detention of suspected terrorists. Determining the scope of this authority encompassed two questions. First, the Court had to determine whether the AUMF authorised the President to detain an individual incidental to the Government's conflict with any organisation (as opposed to nation) responsible for the September 11 attacks. Second, if such authority existed, the Court was required to ascertain the strength of the connection between an individual and a terrorist organisation that must exist to permit the Government to detain that individual.

Throughout the judgment, the Court referred to international humanitarian law ('IHL') as informing the AUMF. The Court principally relied on the Geneva Convention Relative to the Treatment of Prisoners of War ('Third Geneva Convention'), the Geneva Convention Relative to the Protection of Civilian Persons in Times of War ('Fourth Geneva Convention'), and the two Additional Protocols; all of which regulate the conduct of armed conflict. (3) Unfortunately, it failed to consider other more relevant and equally applicable international human rights law. As such, the legality of the detention of terrorist suspects pursuant to the AUMF remains at issue.

  1. The Court's analysis

  1. Does the AUMF authorise the President to detain individuals incidental to the Government's conflict with terrorist organisations?

    The AUMF allows the President to:

    use all necessary and appropriate force against those nations, organisations, or persons he determines planned, authorized, committed, or aided the September 11 attacks] to prevent any future acts of international terrorism against the United States by such nations, organizations[,] or persons. (4) The applicants argued that the President's power to detain was necessarily limited to situations of international armed conflict. They submitted that the conflict between the United States and 'any organisation' was not an international armed conflict for the purposes of IHL and, thus, the AUMF did not reach individuals fighting on behalf of those organisations. The applicants sought to distinguish the earlier case of Hamdi v Rumsfeld, (5) where the detainee had been captured while fighting as a member of the Taliban, and not for an organisation such as al-Qaeda. The applicants drew a distinction between the conflict between the United States and the Taliban, which was characterised as international for the purposes of the Geneva Conventions, and the conflict between the United States and al-Qaeda, which was not international. Following on, the applicants argued that the decision in Hamdi could not be held to apply in the context of a non-international armed conflict.

    The Court rejected this submission, finding that the Court in Hamdi gave no indication that it intended to limit the authorisation to cases of international armed conflict. The Court concurred with Traxler J in Al-Marri:

    it strains reason to believe that Congress, in enacting the AUMF in the wake of the [9/11] attacks did not intend for it to encompass al-Qaeda operatives standing in the exact position as the attackers who brought about its enactment. (6) The applicants' argument was based on a technical interpretation of the Geneva Conventions and Additional Protocols. It is well established that the distinction between international and non-international armed conflict has its roots in the Third and Fourth Geneva Conventions and Additional Protocols I and II. Common article 2 of these Conventions states that they apply to 'all cases of declared war or any other armed conflict which may arise between two or more High Contracting Parties'. (7) International armed conflict is also governed by the subsequently adopted Additional Protocol I. Non-international armed conflict is governed by common article 3 of...

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