Responding to Vladeck on the Graham Bill - Defining the Enemy at the Group Level

Ben has previously posted at length (see here for the first installment) regarding the pros and cons of Senator Graham’s bill on detention (see here for the first in the series), and over the weekend Steve Vladeck joined the conversation with a critical assessment of the bill.  I’m writing now in response to Steve’s concern that the bill would “provide for the potentially fundamental expansion of the scope and nature of the armed conflict” beyond what Congress already authorized in the 9/18/01 AUMF. 

Steve reasons as follows.  First, Congress in the AUMF authorized the use of force against the entity responsible for the 9/11 attacks (i.e., al Qaeda) and those harboring that entity (i.e., the Taliban).  Second, the Graham bill expressly “reaffirms” the authority to use force not just against al Qaeda and the Taliban, but also “associated forces.”  Third, the Graham bill does not define what is meant by association and thus “associated forces” could reach groups that had nothing “to do with 9/11 whatsoever.”  Fourth, the bill would require judges to give the “utmost deference” to an executive branch judgment that a particular group counts as an “associated force,” so long as the executive branch has given a formal notice to that effect (which can be done in camera and ex parte).  As a result of all this, Steve concludes, the bill might “be used to work a dramatic extension both of the class of individuals who can be detained without charges” and, by the same token, of the class of individuals subject to targeting with lethal force.
Let’s briefly set aside the issue of whether courts can or should be obliged to defer to executive branch judgments regarding who counts as an associated force.  That is, let’s examine this issue as if the bill says nothing about deference.
It is common ground that the original AUMF covers al Qaeda and the Taliban, and the implication of Steve’s criticism is that we ought to leave it at that.  In that respect, his argument is much like the argument pressed by the detainee in Parhat v. Gates.  The detainee in that instance was alleged to be part of or a supporter of the East Turkistan Islamic Movement (“ETIM”).  The detainee argued that ETIM had nothing to do with the 9/11 attacks and hence could not fall within the scope of the AUMF.  The government responded that ETIM had become so closely associated with al Qaeda as to become part of it for AUMF purposes.  Ultimately, the D.C. Circuit chose not to address the disagreement, concluding instead that the government’s evidence was insufficient to prove ETIM’s alleged ties to al Qaeda in any event.
Steve’s comments revive this debate, or at least I read him to be saying that any detention authority ought to be limited to al Qaeda and the Taliban, affirmatively excluding groups that had no connection with 9/11.  But there are two problems with that approach. 
The first problem is the concern advanced by the government in Parhat: it is difficult to define organizational boundaries for either al Qaeda or the Taliban (see, for example, this CRS report on al Qaeda), and it may be that some groups that go by a particular name in actual fact are sufficiently intertwined with al Qaeda as to warrant treatment as one and the same.  The government lacked evidence sufficient to prove such a connection with ETIM and al Qaeda in Parhat, but that does not mean such a connection cannot be shown to exist in other circumstances.   
The second and more significant problem has to do with co-belligerency.  The government in Parhat did not argue that ETIM actually was fighting the United States in Afghanistan, and so the co-belligerency issue simply did not arise in that case.  Yet the United States clearly is engaged in actual hostilities with at least some entities in Afghanistan that cannot truly be described as al Qaeda or the Taliban even with a generous understanding of the relevant organizational boundaries (see Ben here for the same point).  Put another way, al Qaeda and the Taliban have co-belligerents who are using armed attacks to drive the U.S. out of Afghanistan.  The Haqqani Network strikes me as an obvious example, and according to an article published in Time online this weekend one might say the same thing about Lashkar-e-Taiba:

With NATO's attention fixed on the southern battle zone where the Taliban is strongest, the LeT, or "Army of the Pure," has aligned with a host of militant groups that have ramped up attacks against Afghan and U.S. forces in the borderlands and beyond. Since they began tracking the group's involvement in Afghanistan in 2008, U.S. officials say the LeT has expanded from a small presence in Kunar province to multiple cells in at least five provinces, actively collaborating with everyone from the Afghan Taliban to the Haqqani network. Kunar and Nuristan remain their focal point, provinces where the U.S. military shut down several remote, heavily targeted bases in the past year. But when NATO in July announced the arrest of two Taliban commanders accused of aiding the LeT, a statement noted the influx of LeT foot soldiers in Nangarhar province, an important commercial center and military supply route. A spike in suicide- and roadside bomb attacks against convoys and government officials have disrupted the once stable area, and Afghan security officials allege the LeT is providing fake documents to attackers.

I hope that it is common ground that U.S. forces do have the right, under the AUMF or otherwise, to use force in response to groups like the Haqqani Network that are actively engaged in combat against U.S., NATO, and Afghan forces.  I would be extremely surprised--shocked, frankly--if any judge ever were to rule that the U.S. military has some detention authority but could not extend it to a group shown to be a co-belligerent in this sense.  The “co-belligerent” issue, in any event, helps explain why the government at least since 2004 has defined its detention authority in terms of “Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.” 
Of course, that quoted formulation is more specific than the language in the Graham bill insofar as it specifies that an “associated force” must be “engaged in hostilities against the United States or its coalition partners.”  My question to Steve, then, is whether adding such qualifying language to the Graham bill’s reaffirmation clause would suffice to address his concern that the bill otherwise will work an undesirable change from the status quo.
Now, back to the deference issue.  This is a different kettle of fish; one can be perfectly fine with the inclusion of the “associated forces” clause in the Graham bill, yet not fine at all with respect to the “utmost deference” clause.  Indeed, when Ben wrote about this before, he cautioned that this provision “raises important questions and could certainly stand some scrutiny and debate, including consideration of how it would have impacted the outcome in the Uighur decision itself.”
Frankly, the debate over the deference clause may not be worth the candle.  On one hand, courts should not and will not construe this language to be entirely binding.  On the other hand, even absent the deference clause in this statute, courts almost certainly will take the view that they owe some measure of deference to the executive’s judgment on the co-belligerency question.  I am suggesting, in short, that judges will give some degree of deference, but not binding deference, with or without this clause.  And if that is right, one can argue both that it is not worth including the provision (given the concerns it raises as illustrated by Steve’s post) or that it is not worth getting worked up about it.  Ultimately, the question of when and why judges should defer to executive branch factual judgments in national security cases is an exceedingly complex question (my detailed thoughts on this general issue are here).