A US federal appeals court on Tuesday unanimously upheld the detention of a Guantanamo prisoner from Yemen. But lurking just beneath the surface of its ruling was a sharp disagreement among the judges over the scope and limits of presidential power.
At issue, beyond this single case, is whether international laws of armed conflict can restrict the wartime power of the president. In January, two of the most conservative judges appointed by former US president George W. Bush — Janice Rogers Brown and Brett Kavanaugh — declared that international law does not restrict presidential power.
That proposition, in a panel ruling upholding the detention of the Yemeni detainee at the Guantanamo Bay naval base, Ghaleb Nassar al-Bihani, sent shockwaves through the legal world. It was criticized by many scholars, and US President Barack Obama’s administration said it did not agree with it — even though the ruling gave the executive branch more power.
On Tuesday, all nine judges on US Court of Appeals for the District of Columbia Circuit rejected a request by al-Bihani to rehear his case. But seven of the nine judges issued an unusual one-paragraph note saying that they viewed Brown’s and Kavanaugh’s discussion of international law as irrelevant to deciding al-Bihani’s fate.
Stephen Vladeck, an American University law professor who filed a friend-of-the-court brief asking the court to rehear the case, said the announcement amounted to a nullification of the more sweeping parts of the January ruling without the court bothering to re-hear it.
The paragraph, he said, tells the world that the section of the January ruling about international law should be treated like what lawyers call “dicta” — editorializing that has little controlling authority for other cases.
“They’ve basically removed the single biggest complaint people had with that opinion,” Vladeck said. “They said, ‘We don’t think we need to rehear the whole case just to limit the opinion — we can just say it, and going forward this is how we understand it.’ That matters a lot.”
Both the Obama administration and federal judges have been wrestling with legal questions about the outer bounds of the government’s power to detain terrorism suspects.
The issue turns on how much contact with al-Qaeda and what kind is sufficient to define someone as part of the enemy force.
That question can be murky in a conflict against a global network of terrorists who wear no uniforms and whose membership is vague. In some cases, whether principles of international law that were developed for traditional wars should come into play can make the difference between whether someone on al-Qaeda’s fringes must be let go or can be imprisoned indefinitely — or even targeted for killing.
In response to their colleagues’ implicit rebuke, Brown and Kavanaugh issued 15-page and 87-page opinions, respectively.
Brown attacked her seven colleagues for appending “a cryptic statement” that she said would “muddy the clear holding” that international law does not limit the war powers Congress authorized.
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