overview of yesterday’s opinions in al-Bihani v. Obama

September 1, 2010

* overview of today’s opinions in al-Bihani v. Obama

As noted yesterday, the D.C. Circuit has denied en banc review, producing many opinions on the way.

Key point: The central dispute concerns the rule of the law of war (aka Law of Armed Conflict aka International Humanitarian Law). And the most important takeaway from yesterday’s decision is that seven of the ten active judges on the circuit joined in a “concurrence” that supported denial of en banc review but also went out of its way to portray a key passage in the original panel’s opinion as mere dicta—specifically, the passage in which the panel majority asserted that the scope of the government’s detention authority turns only on considerations of domestic law, and that the laws of war are not relevant to that inquiry. In any event, here is an outline of the opinions:

Chief Judge Sentelle (joined by Judges Ginsburg, Henderson, Rogers, Tatel, Garland, and Griffith (concurring in the denial) (1 page)

– “We decline to en banc this case to determine the role of international law-of-war principles in interpreting the AUMF because, as the various opinions issued in the case indicate, the panel’s discussion of that question is not necessary to a disposition of the merits.”

Judge Brown (concurring in the denial; Judge Brown was part of the original panel majority) (15 pages)

– denies that the law-of-war argument in the panel opinion was merely dicta

– denies that any particular weight is owed to the Obama Administration’s position that the AUMF should be construed in light of the laws of war

– suggests that the 7-member concurrence “may represent a wish to leave open a possibility…that domestic statutes are in fact subordinate to an overarching international legal order”

– argues that customary international law should not be read as a direct constraint on or basis for interpreting a statute

– concurs with Judge Kavanaugh that customary international law is “not part of the fabric of the law enforceable by federal courts after Erie

– the phrase “necessary and appropriate,” used in the AUMF, does not implicitly incorporate international law as a restraint because such language is more analogous to a grant of discretion to act rather than a limitation on discretion

– construes the Charming Betsy canon to require consideration of international law only in the event of statutory ambiguity in the first instance

– concludes that the Charming Betsy canon does not apply in this instance because interpreting the AUMF not to incorporate international law does not mean that the AUMF also has been interpreted to violate international law

– reads the silence of the AUMF regarding international law as reflecting legislative intent not to bind the President to international law constraints

Judge Kavanaugh (concurring in the denial; Judge Kavanaugh was part of the original panel majority) (87 pages)

– The Kavanaugh opinion is law-review like in the degree of its exposition. In brief, he frames the issue in terms of two questions: (i) is international law part of domestic law in general, and (ii) should the AUMF be construed in light of international law.

– As to issue (i) (whether international law is part of domestic law and hence functions as a directly-relevant consideration with respect to the scope of the government’s detention power):

– customary international law and non-self-executing treaties are not part of federal law enforceable by courts, barring specific incorporation by statute (or by executive regulations that are themselves authorized by statute)

the 1949 Geneva Conventions are not self-executing

even if the 1949 Geneva Conventions had been self-executing, section 5(a) of the Military Commissions Act of 2006 effectively un-executes them (and the MCA 2009 leaves this intact)

– application of MCA section 5 does not implicate the Suspension Clause because it does not impact habeas jurisdiction

– even if any of the materials cited by al-Bihani did apply, and even if they did purport to prohibit detention of non-member supporters of al Qaeda, this would not matter in terms of U.S. law because the 2006 MCA they would not preclude the detention of supporters of al Qaeda should be read to authorize such detention (as argued in the panel opinion) and under the last-in-time rule this would control.

– As to issue (ii) (whether the AUMF nonetheless should be construed in light of int’l law principles):

– there is no indication in the AUMF that Congress intended for the use of force it authorized to be constrained by international law principles

– “all necessary and appropriate force” is best read as authorizing the kinds of force traditionally employed in war as indicated by actual practice, including killing, capturing, and detaining

– legislative history provides ample evidence of a desire to limit actions under the AUMF in conformity with the Constitution and statutes, but not also with respect to international law

– ample domestic law restraints, such as the UCMJ and the War Crimes Act, ensure that this reasoning does not amount to authorization to commit atrocities

– the Charming Betsy canon does not apply to compel a contrary rule because (i) post-Erie the canon should not be invoked in respect to non-self-executing treaties or customary international law, (ii) the canon in any event should not be invoked against the executive branch to require compliance with such non-domestic sources, and (iii) even if it can sometimes be applied in that way against the executive branch, this should not be the case in relation to an AUMF.

Hamdi does not require application of Charming Betsy either: the plurality’s reference to international law in that instance simply made the point that the scope of authority claimed by the government in that instance was consistent with international law and hence surely within the bounds of the AUMF, not that international law would have controlled had the claimed scope of authority not been consistent with international law.

– it does not matter if the executive branch in this instance urges the court to apply the Charming Betsy canon, any more than it would matter if the executive branch urged it to use the canon of constitutional avoidance to reach the opposite outcome

– Even if the AUMF were informed or otherwise constrained by international law, it might not matter insofar as the President also has authority to use force under Article II, and such authority is not informed or bounded by international law

Judge Williams (concurring in the denial; Judge Williams was part of the original panel but had expressed disagreement on this issue) (8 pages)

– Agreeing with Judge Kavanaugh as to the impropriety of treating non-self-executing treaties and customary international law as direct constraints on the President’s authority, but disagreeing as to the impropriety of referencing such materials to inform the interpretation of domestic sources like the AUMF

– prior to Erie, courts routinely used international law in both ways

Erie had the effect of cutting off the use of such law as a direct restraint, but left intact the role of such law as an aid to interpretation of statutes

– this interpretive role is not a one-way-ratchet favoring only expansion of authority; the fact that the plurality in Hamdi used the laws of war in this manner shows that the laws of war also can point in the direction of a restraining interpretation—and language in the plurality opinion in Hamdi seems to do just that

– if international law informed the decision to read the AUMF as conferring a detention power, then we should also at least consult it as to what the detention power actually entails

– It is legitimate to worry about “gauzy” claims of what international law actually provides. Thus “U.S. courts should not automatically attach weight to rulings of such tribunals, not to mention less authoritative expressions of international law, in the absence of clear reason to believe that they will be consistently and evenhandedly applied, are the product of

serious reasoning and are susceptible of practical application.”

United States v. Mehsud (D.D.C. Sep. 1, 2010)

September 1, 2010

* United States v. Mehsud (D.D.C. Sep. 1, 2010) (criminal charges filed, foreign terrorist organization designation issued)

[Note: an overview of the al-Bihani opinions is on the way for later today]

Now this is interesting. First, federal prosecutors in DC have unsealed a criminal complaint (see attached) against Hakimullah Mehsud, the leader of Tehrik-e Taliban Pakistan (“TTP”, generally referred to publicly as the “Pakistan Taliban”). The charges are: (1) Conspiracy to murder US nationals outside the US (18 USC 2332), and (2) Conspiracy to use WMDs against US nationals outside the US (18 USC 2332a) (recall that the “wmd statute” defines “wmd” very broadly – generally speaking, this covers ordinary explosives, and you should just read this charge as conspiracy to use explosives to kill US nationals outside the US). The charges are premised on the famous December 2009 incident in which a Jordanian suicide bomber killed a number of US persons, apparently including CIA personnel according to various media accounts, at a base in Khost. Details appear below in the press release. No doubt this will add to the unending debate concerning the role of criminal prosecution in relation to circumstances in which the U.S. also is using lethal force.

Second, the State Department today has at last gotten round to designating TTP as a Foreign Terrorist Organization (and also designating certain TTP-related individuals including Mehsud as “Specially Designated Global Terrorists”), thus bringing to bear various sanction regimes – including the applicability of the 1996 material support law (18 USC 2339B) and the law criminalizing the receipt of military-style training from such designated groups (18 USC 2339D). Details appear here

-09/01/10 Foreign Terrorist Organization Designation; Office of the Spokesman; Washington, DC
-09/01/10 Rewards for Justice – Hakimullah Mehsud and Wali Ur Rehman Reward Offers ; Office of the Spokesman; Washington, DC
-09/01/10 Designations of Tehrik-E-Taliban Pakistan and Two Senior Leaders; Assistant Secretary Philip J. Crowley, Bureau of Public Affairs; Washington, DC

For other recent designations, see:

-08/06/10 Designations of Harakat-ul Jihad Islami (HUJI) and its Leader Mohammad Ilyas Kashmiri; Office of the Spokesman; Washington, DC
-07/23/10 Pakistan: Haqqani Network Designation; Assistant Secretary Philip J. Crowley, Bureau of Public Affairs; Washington, DC
-07/20/10 Listing of Al-Qaida in the Arabian Peninsula (AQAP); Office of the Spokesman; Washington, DC

From the press release regarding the complaint against Mehsud:

WASHINGTON – Hakimullah Mehsud, the self-proclaimed emir of the Pakistani Taliban, has been charged by criminal complaint for his alleged involvement in the murder of seven American citizens on Dec. 30, 2009 at a U.S. military base in Afghanistan, the Justice Department announced today.

The two-count criminal complaint, filed in U.S. District Court for the District of Columbia on Aug. 20, 2010 and unsealed today, charges Hakimullah Mehsud, aka Hakimullah Mahsud, with conspiracy to murder U.S. citizens abroad and conspiracy to use a weapon of mass destruction (explosives) against U.S. citizens abroad.

According to an affidavit filed in support of the criminal complaint, Hakimullah Mehsud, a resident of the Federally Administered Tribal Area (FATA) in Pakistan, is the leader of the Tehrik-e Taliban Pakistan (TTP), or what is more commonly known as the Pakistani Taliban. The TTP’s primary purpose is to force withdrawal of Pakistani troops from the FATA of Pakistan, which is located along the Pakistan-Afghanistan border; to unite against NATO forces in Afghanistan and to establish Sharia – or Islamic law – in the tribal territories.

The affidavit alleges that the TTP has had alleged roles in, or claimed responsibility for, a number of acts of violence, including the December 2007 assassination of Benazir Bhutto, the September 2009 suicide attack on the Bannu, Pakistan, police station and numerous attacks on NATO supply lines throughout the FATA. These attacks are often coordinated with other insurgents or terrorist groups, including the Taliban and al-Qaeda.

Today, the State Department designated the TTP as a Foreign Terrorist Organization and also designated Hakimullah Mehsud and another Taliban leader, Wali Ur Rehman, as Specially Designated Global Terrorists. The State Department’s Rewards for Justice program is offering a reward of up to $5 million each for information leading to their location.

Hakimullah Mehsud inherited the role as the leader of the TTP after its former leader and founder, Baitullah Mehsud, was killed in August 2009, according to the affidavit. Hakimullah Mehsud remains the commander of TTP, which continues to plan and carry out attacks against the interests of the United States from the FATA. The TTP has recently claimed responsibility for the May 1, 2010 failed bombing of Times Square in New York and also claimed responsibility for the Dec. 30, 2009 suicide bombing in Afghanistan that is charged in the criminal complaint unsealed today.

On Dec. 30, 2009, the affidavit alleges, Humam Khalil Abu Mulal al-Balawi, also known as Abu Dujanah al-Khorasani (al-Balawi), a Jordanian physician, entered a U.S. military base near the town of Khost, Afghanistan, for a pre-planned meeting. Shortly after entering the base, al-Balawi detonated a suicide device concealed beneath his clothing, killing himself and seven U.S. citizens. Six other U.S. citizens were injured.

Soon after the attack, the affidavit alleges, the media arm of the TTP released a video depicting Hakimullah Mehsud and al-Balawi seated together, in which they explain in detail their motivation for launching a suicide attack against the Americans. In the video, Hakimullah Mehsud introduces al-Balawi, states al-Balawi’s reasons for becoming a suicide bomber and describes Americans as the enemy of the mujahideen.

According to the affidavit, Hakimullah Mehsud and al-Balawi both claim responsibility for an upcoming attack in the video, stating together, “And we arranged this attack to let the Americans understand that the belief of Allah, the iman [faith] that we hold, the taqwa [piety] that we strive for cannot be exchanged for all the wealth in the world.” In the video, Hakimullah Mehsud then explains that the motive for the attack against the Americans is revenge for the death of the former emir of the TTP, Baitullah Mehsud. Today, Hakimullah Mehsud is a fugitive believed to be residing in the FATA.

Final Mehsud Complaint and Affidavit.pdf