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

* 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.”

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