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The Zone of Active Combat and the AUMF

Friday morning, a DC Circuit panel vacated the release of Guantanamo detainee, Mohammedou Salahi.  Salahi was in Afghanistan and active with al-Qaeda in 1991, but claimed to have severed ties with the terrorist organization in 1992, after leaving Afghanistan.  Salahi was captured in his homeland of Mauritania in November 2001 before being sent to Guantanamo.  In ordering Salahi’s release, the District Court noted that even though Salahi had, at one point, extensive ties to al-Qaeda, he was not part of the organization’s chain of command at the time he was captured and sent to Guantanamo.

The decision to vacate the grant of habeas illustrates key developments in the D.C. Circuit’s Guantanamo jurisprudence.  1) The “chain of command” test is not the only means to determine if someone is a member of a terrorist organization at the time of capture.  2) Habeas judges need to look at the “totality of the circumstances” at trial and not focus decisions to detain on an isolated set of facts.  3) Perhaps most importantly, if on remand Salahi is detained, there may be questions on the AUMF detention authority’s reach to those picked up outside of the “zone of active combat.”  In writing for the plurality in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), Justice O’Connor extended the AUMF’s authority to detain individuals part of forces hostile to US forces in Afghanistan who engaged in armed conflict (emphasis added).  The Circuit Court, however, did not make any new or explicit interpretations on the President’s authority to detain terrorist suspects.

Specifically, the District Court will explore on remand whether Salahi knew that at time of his involvement he was recruiting individuals for al-Qaeda’s jihad against the US, whether he was asked to assist in communications projects in Afghanistan, and whether he had taken a role in planning/executing cyberattacks.  The answers to those factual determinations–along with the timetable of Salahi’s involvement–will determine whether continued detention is appropriate.

The Circuit Court’s opinion and additional commentary can be found at SCOTUSblog.


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