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August 31, 2010


Anthony Renzo

The Aug. 31 "report" by Scarcella on the D.C. Cir. denial of hehearing in the Al-Bihani case completely misses the point. Scarcella's report focuses on lengthy quotes from the separate opinions written by Judges Brown and Cavanaugh, and chooses to completely ignore the central fact of the decision, to wit: seven of the nine judges were unwilling to support the extreme views of Brown and Cavanaugh, making it clear that reaching the issue of whether international law limits the President's commander in chief powers was unnecessary to deciding the case. Hence, that part of the panel's opinion, representing the views of Brown and Cavanaugh on this point, can be treated as dictum and has no binding precedential value. My God, that's why Brown and Cavanaugh wrote lengthy separate opinions trying desperately to salvage the precedential value of their panel opinion. So why focus on language from the opinions of the two judges whose views on this point had been deftly brushed aside by better than a three to one margin? The article reads like the views of these two extremists were adopted by the majority. This article is so misleading as to be downright inaccurate.

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