A federal judge has ruled that the Obama administration cannot use a captured person's "substantial support" for the Taliban or al Qaeda as a reason to justify their detainment. At the same time, Judge John Bates, in an order that has ramifications for the upcoming trials of many detainees, held that the government was well within its rights to indefinitely detain several classes of belligerents, including under Congress's 2002 Authorization for Using Military Force in Afghanistan resolution.

Detaining an individual who "substantially supports" such an organization, but is not part of it, is simply not authorized by the AUMF itself or by the law of war. Hence, the government's reliance on "substantial support" as a basis for detention independent of membership in the Taliban, al Qaeda or an associated force is rejected

It is not entirely clear how many of the 240 Guantanamo detainees fall into this category. Bates, according to an analyst who has reviewed the decision, gave the government an out by noting that direct evidence that a person helped the Taliban means that the person is "functionally" part of the Taliban, and thus would be covered by the AUMF.

Importantly, Bates accepted the Obama administration's reliance on Congress as the arbiter of how the detainees are disposed, which suggests that future cases involving the procedures for their dispositions will also give weight to Congress's grappling with changes to the military commissions statutes.

There are now two rulings by two federal judges on the subject of whether the Obama administration's definition of the scope of its detention authority is valid.



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