The Removal of International Law from Guantanamo Detainee Litigation: Problems and Implications of Al-Bihani V. Obama
Waring, Christine, Georgetown Journal of International Law
TABLE OF CONTENTS I. INTRODUCTION II. DETENTION AUTHORITY: AN EXAMINATION OF PAST PRACTICES III. DETENTION AUTHORITY AND THE WAR ON TERROR A. Post 9/11 Sources of Detention Authority B. The Examination of Post 9/11 Sources of Detention Authority by the Supreme Court IV. LITIGATING THE GUANTANAMO DETAINEES' HABEAS CORPUS CLAIMS A. Formulating the Scope of Detention Authority in the District Court 1. Gherebi v. Obama 2. Hamlily v. Obama B. Scope of Detention Authority in the Circuit Court--Al-Bihani v. Obama 1. Al-Bihani's Deficiencies 2. Al-Bihani's Effect on Case Law V. AL-BIHANI'S EFFECT ON DETAINEES--CASE STUDIES A. Removal of International Law Results in Loss of Habeas Petitions 1. Hatim: Reverse and Remand for Rehearing 2. Salahi: Reverse and Remand for Rehearing 3. Uthman: Reverse and Remand for Denial B. Revival of International Law Despite Al-Bihani? 1. Al Warafi: Affirmed in Part, Remanded in Part VI. RECOMMENDATIONS VII. CONCLUSION
After the terrorist attacks on September 11, 2001, Congress quickly passed legislation authorizing the President to respond with military force. (1) The Authorization for Use of Military Force (AUMF) provides:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (2)
In order to facilitate the war in Afghanistan, President George W. Bush issued a military order on November 13, 2001, entitled "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism." (3) This order sets out the authority of the President to detain and try persons before military commissions based on the President's inherent Article II (Art. II) powers in the United States Constitution and Congressional authorization, including the AUMF. (4) However, as the war progressed, it became clear that the language in the AUMF, which was written and passed within a span of nine days after the 9/11 attacks, (5) left room for uncertainty as to what Presidential actions it authorized. (6) Specifically, it left unclear the scope of the President's power to detain individuals.
Through an analysis of prior Supreme Court precedent, legislative history, and executive branch comments, this paper examines the United States Court of Appeals for the District of Columbia Circuit's (D.C. Circuit Court) opinion in Al-Bihani v. Obama (7) which found that international law had no application with respect to the applicability of international law to the scope of the President's authority to detain individuals in Guantanamo. The analysis reveals that the D.C. Circuit Court's reasoning in Al-Bihani is flawed for failing to take into account prior Supreme Court opinions which state that international law should define the scope of the President's authority to detain individuals. Additionally, the Al-Bihani opinion fails to address statements by both the executive and legislative branches that international law should be used to inform the bounds of detention authority. As a result, Al-Bihani created precedent that removed international law as a limit to the President's detention authority, (8) resulting in the reversal of several detainees' petitions for habeas corpus. (9)
In order to examine the Al-Bihani opinion, Part II provides background and explanation of the sources of detention authority found in past conflicts. Part III then analyzes the source of detention authority, in the current conflict with Al-Qaida and the Taliban. Specifically, Part III explores the Supreme Court's use of international law in its explanation of detention authority in Hamdi v. …