applicability of the Constitutional Amendments as they relate to Guantánamo detainees has not been definitively determined or ruled upon.157 146. Although the AUMF does not specifically mention detention, US courts have determined that the AUMF authorizes the US government to detain at least some Guantánamo detainees. The AUMF authorizes the President to use “all necessary and appropriate force against those nations, organizations, or persons” the President determines “planned, authorized, committed or aided the terrorist attacks” on 9/11. The Act also allows the use of necessary and proportionate force against those that harboured these organizations and people to prevent future acts of international terrorism against the United States.158 A plurality in the Supreme Court’s decision in Hamdi v. Rumsfeld recognized that the US President could detain persons captured fighting on behalf of Taliban forces during the armed conflict in Afghanistan to prevent their “return to the battlefield”.159 Congress recognized the AUMF’s detention authority in the National Defense Authorization Act (NDAA) of 2012.160 147. In practice, detention under the AUMF is not limited to those individuals who are captured on the battlefield or those who directly participated in hostilities. Instead, the authority to detain individuals at Guantánamo has thus far turned primarily on a detainee’s association with al Qaeda, the Taliban or associated forces.161 In 2009, lower courts adopted the Obama administration’s position and determined that the AUMF allows for the detention of those seized outside the United States when they were “part of, or substantially supported, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or coalition partners”.162 Other lower court determinations include that membership in al Qaeda, the Taliban or associated forces can be established by a mere preponderance of evidence and that vitiation and lack of dangerousness are of no relevance to the government’s authority to continue to detain persons under the AUMF.163 157 In Kiyemba v. Obama, the United States Court of Appeals for the District of Columbia Circuit did say that Guantánamo detainees did not have due process rights in habeas corpus proceedings: “Decisions of the Supreme Court and of this Court (…) hold that the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.” United States Court of Appeals for the District of Columbia Circuit, Kiyemba v. Obama, Case Nos. 08-5424, 08-5425, 08-5426, 08-5427, 08-5428 and 08-5429, 18 February 2009, <https://casetext.com/case/kiyemba-v-obama-7/>. 158 AUMF, Sec. 2. 159 The decision in Hamdi was limited to the confinement of an American citizen who fought alongside the Taliban against the United States. United States Supreme Court, Hamdi v. Rumsfeld, op. cit., note 47; Jonathan Hafetz, “Calling the Government to Account: Habeas Corpus after Boumediene”, Seton Hall Law School Working Papers Series, 14 December 2011, p. 46, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1972542>. 160 NDAA 2012, §§ 1021-1022. 161 Hafetz, “Calling the Government to Account”, op. cit., note 159, p. 47; Stephan I. Vladeck, “Detention after the AUMF”, Fordham Law Review, Vol. 82, No. 5, April 2014, pp. 2189-2207, at 2194, <http://fordhamlawreview.org/assets/pdfs/Vol_82/Vladeck_April.pdf>. 162 This was the executive’s position as per the Obama administration’s March 2009 brief submitted to the district court in the Guantánamo habeas corpus litigation. Courts, and then Congress, essentially adopted this position (although the United States Court of Appeals for the District of Columbia Circuit in Bihani initially used the language “materially supported”). In virtually all cases, courts have rested on the “part of” prong of the AUMF detention standard. United States District Court for the District of Columbia, In Re: Guantanamo Bay Detainee Litigation, “Respondents’ Memorandum regarding the Government’s detention authority relative to detainees held at Guantanamo Bay”, op. cit., note 52; UN CAT, Third to fifth periodic reports of States parties due in 2011, United States of America, CAT/C/USA/3-5, 12 August 2013, para. 59, <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fUSA%2f3-5&Lang=en >; Hafetz, “Calling the Government to Account”, ibid., pp. 19-22, 45-51. 163 Vladeck, “Detention after the AUMF”, op. cit., note 161, p. 2194. See, also, Hafetz, “Calling the Government to Account”, ibid., pp. 22-30. 59