Al-Bihani, Not So Charming

By Walsh, Cara Maureen | Vanderbilt Journal of Transnational Law, October 2010 | Go to article overview

Al-Bihani, Not So Charming


Walsh, Cara Maureen, Vanderbilt Journal of Transnational Law


ABSTRACT

In June 2008, the Supreme Court extended the Suspension Clause to foreign detainees at Guantanamo Bay, Cuba. Since then, courts have struggled to define appropriate standards to govern detainee habeas corpus petitions. Until recently, no court questioned the relevance of international law to the development of these standards. But, in January 2010, a D.C. Circuit panel held that international law does not constrain executive detention power. That decision could devastate detainee habeas corpus petitions by preventing courts from examining the heart of the government's own claimed detention authority.

This Note evaluates the proper role of international law during ongoing Guantanamo detainee habeas corpus litigation through an examination of the D.C. Circuit panel's legal analysis in Al-Bihani v. Obama. Because international law has always played a role in U.S. jurisprudence, judges already have the necessary tools to grapple with the international legal issues that the detainee cases present. In light of the Legislature's refusal to develop appropriate standards to govern these cases, the Judiciary must use these tools to balance national security with individual liberty.

TABLE OF CONTENTS

  I. INTRODUCTION
 II. INTERNATIONAL LAW IN U.S. COURTS:
     THE CHARMING BETSYDOCTRINE
     A. Historical Treatment of International Law
        in U.S. Courts Under the Charming
        Betsy Doctrine
     B. Charming Betsy After the Military
        Commissions Act
        1. Constitutional Issues Raised by
           Precluding the Courts from Looking to
           the Geneva Conventions
        2. Issues Raised by the Military Commissions
           Act [section] 5
        3. Delegated Interpretations
III. AL-BIHANI V. OBAMA
     A. Background and Facts
     B. The Court's Legal Reasoning
     C. Al-Bihani v. Betsy
 IV. WHAT IS A "REASONABLE" INTERPRETATION OF
     INTERNATIONAL HUMANITARIAN LAW DURING THE
     GUANTANAMO HABEAS HEARINGS?
     A. Binding Domestic Authorities
     B. General Principles of International
        Humanitarian Law
     C. The Detention of Al-Bihani
  V. CONCLUSION

I. INTRODUCTION

In June 2008, the Supreme Court's decision in Boumediene v. Bush extended the Suspension Clause to foreign nationals at Guantanamo Bay, Cuba. (1) However, the Court's analysis left crucial questions unanswered. Some of these questions--such as what to do with detainees once they are released from U.S. custody--are primarily political. (2) But at least one has been left for the courts to decide. Now that Guantanamo Bay detainees can challenge their detention in U.S. courts, (3) what is the extent of the President's authority to detain them? (4)

The President's detention power is an "important incident to the conduct of war," (5) meant to "prevent captured individuals from returning to the field of battle and taking up arms once again." (6) After September 11, the President's detention authority derives from the 2001 Authorization for Use of Military Force (AUMF). (7) Yet, the procedural and substantive rules governing these detentions remain undefined, and the Supreme Court has left this task to the lower courts. (8)

Until recently, no court questioned the relevance of international law to the development of these rules. That changed in January 2010 when, in Al-Bihani v. Obama, a three-judge panel of the D.C. Circuit Court of Appeals broadly held that international law does not place any constraints on the Executive's war powers, absent an explicit congressional declaration to that effect) That ruling will most likely create binding precedent, preventing courts from considering international law-based challenges to the Government's asserted legal authority to detain. (10) Yet, the Executive itself partly bases its detention authority on international law. (11) For that reason, many Guantanamo detainee habeas petitions also rely on international legal principles. …

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