text: Steve Vladeck on Hatim - Lawfare
  Saturday, February 19, 2011, 9:18 PM
  Steve Vladeck has this very interesting take on last week's Hatim decision. Put simply, Steve thinks this case is a way bigger deal than we have suggested, for the following reason:
  Buried in the three-page order, however, is a critically important--and dangerously wrong--holding that will likely prejudice Hatim's case on remand (and any number of cases to follow). Here's the relevant language:
  The district court ruled that the military could detain only individuals who were "part of" al-Qaida or the Taliban; and that Hatim did not fit that description. That ruling is directly contrary to Al-Bihani v. Obama, which held that "those who purposefully and materially support" al-Qaida or the Taliban could also be detained. Hatim admits the error, but says it was harmless. We cannot see how. As the district court stated in issuing the stay, Al-Bihani "calls into question" a "key determination[ ]" upon which the order rested.
  Just to be clear, the key here is the notion that anyone who "purposefully and materially support[s]" al Qaeda or the Taliban can be detained indefinitely, whether or not they're in any way affiliated with either group, and whether or not they come anywhere near the definition of a "belligerent" under international humanitarian law. (After all, the famous "little old lady in Switzerland" who gives money to certain Islamic charities may be materially supporting al Qaeda...)
  Suffice it to say, it's an amazingly broad--and momentous--holding. So what? Well, (1) the Obama Administration has never affirmatively argued in a habeas case that the scope of the AUMF should be understood by reference to the MCA; (2) such a conclusion was, at best, dicta in Al-Bihani (which is why the district court in Hatim said Al-Bihani only "call[ed] into question" Hatim's argument, rather than foreclosed it); and (3) there is clear and compelling evidence that, dicta or not, Al-Bihani's analysis on this issue was just plain wrong.
  I think Steve is very likely over-reading what seems to me a passing reference to a prior case in the course of a list of several intervening circuit court decisions that necessitated a remand of the district court judgment in Hatim. It is also worth noting that the Obama administration has gone out of its way not to argue detention cases on the basis of support--while preserving the possibility--but only on the basis that a detainee is "part of" the enemy. That said, Steve's post is interesting and I urge readers to check it out. It's possible that the court in Hatim has done significantly more than I initially appreciated--or perhaps even than the judges meant to do.