A federal appeals court in Washington today unanimously denied a full-court rehearing to resolve a dispute over the role that international law plays in restricting the president's war powers.
The nine active judges of the U.S. Court of Appeals for the D.C. Circuit denied the request from lawyers representing Guantanamo detainee Ghaleb Al-Bihani, who has been held in U.S. custody since 2001. Bihani’s lawyers at the federal public defender's office in San Diego said Al-Bihani was a cook when he was captured in Afghanistan.
A three-judge appeals court panel earlier this year upheld Al-Bihani’s detention as lawful. The principles of international law at issue in the Al-Bihani case include whether an individual who is not a member of a nation’s armed forces remains a civilian and whether the government that captures a person must give the detainee prisoner-of-war status or let a tribunal determine the status.
Lawyers for Al-Bihani argue the president's war powers limit detention "for the sole purpose of preventing future acts of terrorism against the U.S. It authorizes preventative, not punitive, detention." Al-Bihani's lawyers maintain the government has failed to prove that Al-Bihani poses a future threat to the United States.
Seven appellate judges—including Chief Judge David Sentelle and Judges Merrick Garland, Douglas Ginsburg and Thomas Griffith—joined in a short statement the chief judge published today in denying the rehearing en banc. The statement said the court does not need to discuss the extent to which international law restrict presidential war power to decide the merits of Al-Bihani's continued detention.
Judges Janice Rogers Brown and Brett Kavanaugh, who each agreed with the overall outcome, wrote separate opinions. Kavanaugh and Brown were on the panel earlier this year that declared international law does not restrict presidential war power. The D.C. Circuit's ruling is here.
Brown and Kavanaugh wrote at length defending the panel holding. Brown said the president holds wide discretion to implement authority, whether or not it is consistent with international law. Lawmakers, she said, “may add whatever limits or constraints it deems wise as the war progresses. The decision-making in wartime, Brown said, should “be informed by the expertise of the political branches.”
“None of those benefits accrue if the conduct of the military is subject to judicial correction based on norms of international discourse,” Brown said. “Such an approach would place ultimate control of the war in the one branch insulated from both the battlefield and the ballot box.”
Kavanaugh, who wrote an 87-page concurrence, said international law norms are not automatically part of domestic U.S. law and that the president authorization for use of military force did not incorporate the international laws of war. Congress and the president, he said, determine whether and how the United States acts with respect to international obligations.
He said the request from Al-Bihani’s lawyers “contravenes bedrock tenets of judicial restraint and separation of powers."
“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 [Authorization for Use of Military Force],” Kavanaugh wrote.
In a footnote, Kavanaugh praised the “extraordinary efforts” of district judges who have grappled with the “difficult and intricate” question of the relevance of international law to the president’s war powers. “Even when this Court might disagree with a District Court decision, that disagreement is with respect and appreciation for the dedicated work of the District Court on these matters,” Kavanaugh said.
Updated Sept. 3