Wednesday, January 13, 2010

Al-Bihani Detainee Decision Badly Misstates International Law

Yesterday, I read the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Al-Bihani v. Obama, No 09-5051 (January 5, 2010).  Rarely have I been so dismayed by a court's misstatements about the applicability of international law.  Al-Bihani is a Yemeni citizen who, by his own admission, was part of a paramilitary group known as the 55th Arab Brigade that was allied with the Taliban.  He was captured by the Northern Alliance in Afghanistan and turned over to U.S. forces and is now being detained at Guantanamo Bay.  He petitioned the U.S. courts for a writ of habeas corpus, arguing that his detention is not authorized by statute and that the procedures followed in his habeas proceeding were unconstitutional.  The Court denied his petition, finding that the U.S. government may detain persons such as Al Bihani who were part of or supported Taliban or Al Qaeda forces or associated forces engage in hostilities against the U.S. and its coalition partners.  

In making his arguments, Al-Bihani relied in part on international law, especially the Geneva Conventions on the Laws of War, to which the United States is a party.  The Court flatly rejected the applicability of international law stating: "Before considering [Al-Bihani's] arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the AUMF [Authorization for the Use of Military Force], and other statutes are limited by the international laws of war.  This premise is mistaken." 

Actually, it is the Court that is mistaken. 

As the U.S. Supreme Court found in the earlier detainee cases of Hamdi and Hamdan, the President's power to convene military commissions is most definitely limited by international law, especially the Geneva Conventions.  The Al-Bihani Court goes on to state that "the international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts. . .therefore while the international laws of war are helpful to courts, [they] lack controlling legal force." 

This statement is also mistaken. 

The Geneva Conventions are part of the Supreme Law of the Land under Article VI of the U.S. Constitution and are equally authoritative as U.S. statutes (see Whitney v. Robinson).  Moreover, much of the international law of war has been implemented domestically by the Uniform Code of Military Justice (UCMJ), as the Supreme Court has also noted in its earlier detainee decisions.  The Al-Bihani Court further states that the "international laws of war are not a fixed code" and cites to section 102 of the Restatement (Third) of Foreign Relations Law of the United States for support.  

A major problem with this part of the Court's analysis is that the portion of the Restatement relied upon by the Court describes customary international law, not treaty law such as the Geneva Conventions and is therefore inapplicable.   

The U.S. Court of Appeals for the District of Columbia may be correct that Al-Bihani is among those Congress authorized the President to detain given his admitted involvement with the 55th Arab Brigade.  However, the Court's misunderstanding of the role of international law is extremely discouraging to say the least.

(cgb) 

http://lawprofessors.typepad.com/international_law/2010/01/albihani-detainee-decision-badly-misstates-international-law.html

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