Diminishing a precedent
(2:30 p.m. Expanded and updated.)
After pondering the issue for more than three months, the full D.C. Circuit Court unanimously refused on Tuesday to reconsider the most sweeping opinion that Court has yet issued against the legal claims of detainees at Guantanamo Bay. But, in doing so, seven of the nine active judges on the Court made an effort to narrow the scope of that ruling, saying its broadest statements were unnecessary to the outcome. That effort was joined by a senior judge who had been on the original panel, who wrote separately. The denial of en banc review produced 113 pages of opinions. Separately, the three-judge panel also denied rehearing without an opinion.
The panel’s decision last Jan. 5 in the case of Al-Bihani v. Obama (Circuit docket 09-5051) upheld a wide-ranging view of the government’s authority to detain non-citizens suspected of terrorism, ruling that the power is not limited in any way by international law — a view that even the Obama Administration indicated it did not share. A blog post discussing the original decision can be found here; the Administration’s view was discussed in this post.
The seven active judges said they had voted to deny en banc review “to determine the role of international law-of-war principles in interpreting” Congress’s 2001 anti-terrorism resolution “because, as the various opinions issued in the case indicate, the panel’s discussion of that question is not necessary to the disposition of the merits.” It also noted the Obama Administration’s views on that point.
Justice Janice Rogers Brown, who wrote the panel’s broad opinion, wrote separately on Tuesday, commenting that her seven colleagues had voted against reconsideration with “a cryptic statement that exhibits no apparent function other than to mystify.” She said that, plus the Administration’s “ambivalent” position — rejecting the panel view on law-of-war impact yet supporting a denial of rehearing — and the writing of other members of the Court had had the “cumulative effect” of “muddy[ing] the clear holding of Al-Bihani that international law as a whole does not limit the AUMF’s grant of war powers.” (AUMF refers to Congress’s 2001 Authorization for Use of Military Force, passed shortly after the terrorist attacks of 9/11. That resolution is the only authority that the Obama Administration cites for presidential detention power.)
Judge Brown’s separate opinion was somewhat defensive, suggesting that the outcome of Tuesday’s action was “the costly expedient of making a rather common-place judicial proposition impenetrably obscure.” She said that her colleague Judge Brett M. Kavanaugh’s 87-page separate opinion amounted to a claim that international law could not be enforced at all as a limit on the President’s war-making powers under the AUMF, and that a separate opinion by Senior Judge Stephen F. Williams (who as a member of the panel did not support the breadth of that ruling) was proposing “a brave new role for judges in wartime: that of supervisors of the battlefield.”
She launched into her own exploration of the issue, a 15-page opinion which, she indicated, was offered to “provide as much clarity as possible,” in order to avoid leaving “all parties in doubt about international law’s relation to the AUMF.”
Although federal District judges in Washington have been applying the Al-Bihani decision to detainee cases that have arisen since that ruling came down some eight months ago, the international law issue has not been treated as it curbed their judicial power significantly. How they will react to Tuesday’s writings is unclear at this point. The reality for those judges is now that there is no controlling precedent in the Circuit on the role that international law plays in defining the president’s powers of detention. Judge Brown’s panel opinion and its discussion on that point now appears to have been undermined by the views of the seven other judges, essentially treating that discussion as mere dicta. And the opinions of Judges Kavanaugh and Williams speak only for themselves.
One thing the Tuesday actions did settle, though, was that the Al-Bihani decision is not going to be reconsidered. Much of it stands as the Circuit Court’s first attempt to clarify the scope of detainee rights and detention authority in the wake of the Supreme Court’s 2008 decision in Boumediene v. Bush. That ruling left to lower courts how to implement the detainees’ right to challenge their captivity. Aside from the panel discussion of the international law issue, that opinion also held — and, on this, it is a binding precedent — that detention power is not limited to those who are part of an official state military or to a civilian who has committed a direct hostile act, such as firing a gun in combat. Also binding precedent is the panel’s rejection of every one of the claims by the detainee in this case that the procedures used in his habeas case were inadequate.
The lawyers for that detainee, Ghaleb Nassar Al-Bihani, a Yemeni national at Guantanamo Bay since 2002, had asked both the panel and the en banc Court to reconsider the panel decision. Since the briefing on that question was completed on May 13, nothing had been heard from the Circuit Court. The length of Tuesday’s writings probably accounted for most of the intervening three-plus months.
Judge Kavanaugh’s long opinion joining in the denial of rehearing sought to shore up presidential detention power by rejecting any limits on that power by international law. “International-law norms that have not been incorporated into domestic U.S. law by the political branches are not judicially enforceable limits on the President’s authority under the AUMF,” he wrote. International law does not automatically become a part of domestic U.S. law, and Congress did not incorporate it into the 2001 resolution, according to Kavanaugh.