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Obama Administration defends the relevance of international law to detention authority

In case you missed this, in a brief submitted to the D.C. Circuit Court of Appeals on Thursday, May 13, the Obama Administration made an important statement about the applicability of the laws of war to the on-going “war on terror.” In Al-Bihani v. Obama, the D.C. Circuit upheld the decision of the District Court denying Al-Bihani’s petition for a writ of habeas corpus. Al-Bihani has been detained at Guantanamo since 2002, and did not dispute that he had “accompanied and served a paramilitary group allied with the Taliban, known as the 55th Arab Brigade, which included Al Qaeda members within its command structure and which fought on the front lines against the Northern Alliance.” In the course of its ruling, the D.C. Circuit dismissed the relevance of the laws of war to the case. The Court began by noting that “the premise that the war powers granted by the AUMF [Authorization for Use of Military Force] and other statutes are limited by the international laws of war . . . is mistaken.” The Court continued:

There is no indication in the AUMF, the Detainee Treatment Act of 2005, Pub.L. No. 109-148, div. A, tit. X, 119 Stat. 2739, 2741-43, or the MCA of 2006 or 2009, that Congress intended the international laws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF. 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. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 111(3)-(4) (1987). Even assuming Congress had at some earlier point implemented the laws of war as domestic law through appropriate legislation, Congress had the power to authorize the President in the AUMF and other later statutes to exceed those bounds. See id. § 115(1)(a). Further weakening their relevance to this case, the international laws of war are not a fixed code. Their dictates and application to actual events are by nature contestable and fluid. See id. § 102 cmts. b & c (stating there is “no precise formula” to identify a practice as custom and that “[i]t is often difficult to determine when [a custom's] transformation into law has taken place”). Therefore, while the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks, see Hamdi, 542 U.S. at 520, 124 S.Ct. 2633, their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.

There are so many things wrong with the statement– not the least of which is the comment that “the international laws of war are not a fixed code. Their dictates and application to actual events are by nature contestable and fluid.” Certainly there are some contentious areas of the laws of war, but this statement implies that there are virtually no fixed, clear principles of the laws of war. That simply is not correct. There is a very long history to the laws of war. Customary law on war developed even before the first Geneva Convention of 1864 and the Hague Conventions of 1899. Today, there are many rules that are quite clear and applied by militaries through out the world.

To its credit, the Obama Administration also rejected the Court’s claim about the laws of war. While the Administration agreed with the Court that Al-Bihani’s petition for habeas should be denied and opposed his request that the case be heard by the D.C. Circuit en banc, their brief had the following to say about the laws of war:

To support his claim for further review on this issue, Al-Bihani cites to the panel’s more general statements that the laws of war do not limit the President’s authority under the AUMF. See 590 F.3d at 871 (the “premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war * * * is mistaken”). The Government agrees that this broad statement does not properly reflect the state of the law. As it announced on March 13, 2009, the Government interprets its detention authority under the AUMF to be informed by the laws of war. That interpretation is consistent with longstanding Supreme Court precedent that, generally, statutes should be construed, if possible, as consistent with international law. See, e.g., Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804) (“an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains”); see also MacLeod v. United States, 229 U.S. 416, 434 (1913) (“The statute should be construed in the light of the purpose of the government to act within the limitation of the principles of international law”); Port Authority of New York and New Jersey v. Department of Transp., 479 F.3d 21 (D.C. Cir. 2007) (Brown, J.) (“an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains”) (quoting Charming Betsy, 6 U.S. at 118); United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991) (“courts will not blind themselves to potential violations of international law where legislative intent is ambiguous”); South African Airways v. Dole, 817 F.2d 119, 125 (D.C. Cir. 1987). Notably, in Hamdi, the plurality applied this approach specifically to the AUMF. The plurality discussed the Third Geneva Convention and other law-of-war sources when addressing detention authority under the AUMF and explained: “we understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ [in the AUMF] to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.” 542 U.S. at 520-521 (emphasis added). Consistent with Hamdi, the United States interprets the detention authority granted by the AUMF, as informed by the laws of war. (footnotes omitted)

Good. I am glad to see the Obama Administration setting down an important marker about the role of international law. It will be interesting to see how other courts will rule on this issue. Indeed, there will likely be more rulings by the Supreme Court that will touch on this question.

(HT: Lyle Denniston at SCOTUSblog)

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.