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U.S.: Law of war affects detention

The Obama Administration urged the D.C. Circuit Court on Thursday to leave undisturbed its first major ruling applying the Supreme Court’s 2008 decision on detainees’ rights, but did argue that the Circuit Court was wrong in declaring that international law does not put any limit on the U.S. government’s detention powers.  International “law of war” principles, the new Administration document said, are directly implicated by the detention authority that Congress created after the Sept. 11, 2001, terrorist attacks.  The new brief can be found here.  It opposed en banc review by the Circuit Court of a Guantanamo Bay detention case, Al-Bihani v. Obama (Circuit docket 09-5051).

In the Al-Bihani decision (discussed in this post), a three-judge Circuit Court panel in January upheld the broadest view that any government has taken of presidential detention power, but went even further and declared that only domestic law controls who may be detained, thus providing no role for international law or treaties to play in limiting or defining that authority.  That additional “broad statement,” the new Administration brief said, “does not properly reflect the state of the law.”

The brief went on to say, however, that the Circuit Court panel actually did examine the merits of a claim of a violation of international law, and rejected it.  Thus, the misstatement about the law-of-war question does not justify further review of the case, the brief concluded.  The new filing also disputed claims that the Circuit Court had taken away almost all of the procedural safeguards that Guantanamo Bay detainees need as they seek to challenge in federal District Court their continued confinement.

The case involves Ghaleb Nassar Al-Bihani, a Yemni national who has been at Guantanamo since 2002.  A federal District judge upheld his continued detention, concluding that Al-Bihani had served as a cook in a military brigade that was supporting the Taliban movement in Afghanistan, with links to the Al-Qaeda terrorist network.  Al-Bihani’s appeal of that ruling was the first Guantanamo case to reach the Circuit Court in the wake of the Supreme Court’s ruling in Boumediene v. Bush two years ago, declaring for the first time that Guantanamo detainees have a constitutional right to go to court to challenge their imprisonment.   The Supreme Court, though, left much of the detail of how those challenges would actually play out in lower courts, and the Circuit Court panel decision rejecting Al-Bihani’s claims was the first appellate court ruling to start filling in some of the blanks.

Al-Bihani’s lawyers, supported by a group of human rights and civil liberties groups along with a number of legal scholars, formally asked the Circuit Court to cast aside the panel decision and reconsider his case before the full, en banc Circuit Court — a nine-member Court at the present time.  That was the request that the Administration’s Justice Department lawyers opposed on Thursday, after the Circuit Court asked for the government’s views on the issue.   The brief supported all aspects of the panel’s decision except its declaration that international law, including law-of-war principles, simply have nothing to say about U.S. detention power.

The new brief noted that President Obama had announced, two months after taking office, that the government understood that detention power had to conform to the law of war — a set of legal principles under international law that govern how nations are to act during wartime hostilities.  Aside from the President’s statement, the brief said, there are many court precedents that say explicitly that no U.S. law should be interpreted in a way that puts it in conflict with international law.

The law that Congress passed after the 9/11 attacks — the Authorization for the Use of Military Force — is “informed by” the law of war, the brief said.

On another point, the brief disputed Al-Bihani’s argument that he should now be released because the U.S. military’s armed conflict with the Taliban forces in Afghanistan has ended and, since he was captured during that conflict, his detention had to end when those hostilities did.  Armed conflict still is going on in Afghanistan, the brief argued, even if it is not specifically against the Taliban-dominated government that has been displaced in the country. In any event, the brief argued, it is up to the President and Congress, not the courts, to decide when an armed conflict has come to an end.