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Wednesday, January 20, 2010

'In a terror war, to hell with international law'

An important ruling has come down from the United States Court of Appeals for the DC Circuit. If it stands, I hope that Israel will implement it too.
The 2-1 ruling was handed down in the case of a Guantanamo detainee seeking release through a constitutional, or habeas, review of his case. But instead of being a paean to the power of the writ of habeas corpus, language in the opinions supporting the ruling may instead serve as a rallying cry for those who say it is time for the president and Congress to face reality and recognize the old rules no longer apply.

U.S. Circuit Judge Janice Rogers Brown wrote the majority opinion, and a separate concurrent opinion agreeing with the majority document. In that second opinion, in a highly unusual departure from judicial custom, Brown sets out a chilling vision of the stakes and new tactics in the war against terror.

"War is a challenge to law, and the law must adjust," Brown wrote. "It must recognize that the old wine skins of international law, domestic criminal procedure or other prior frameworks are ill-suited to the bitter wine of this new warfare. We can no longer afford diffidence. This war has placed us not just at, but already past the leading edge of a new and frightening paradigm, one that demands new rules be written. Falling back on the comfort of prior practices supplies only illusory comfort."

The U.S. Court of Appeals for the District of Columbia Circuit is sometimes called the second highest court in the land. It reviews all cases arising from Guantanamo claims, and its decisions in that venue must be followed by the other U.S. circuit courts of appeal.

The case before it was brought by Ghaleb Nassar al-Bihani, a Yemeni citizen, who has been held at the U.S. detention facility in Guantanamo Bay, Cuba, since 2002.


The opinion said all of al-Bihani's arguments "rely heavily on the premise that the war powers granted by the (congressional Authorization for Use of Military Force) and other statutes are limited by the international laws of war. This premise is mistaken. There is no indication in the AUMF, the Detainee Treatment Act of 2005 ... or the MCA of 2006 or 2009, that Congress intended the international laws of war to act as extra-textual limiting principles for the president's war powers under the AUMF. The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts. ...

"Therefore, putting aside that we find al-Bihani's reading of international law to be unpersuasive, we have no occasion here to quibble over the intricate application of vague treaty provisions and amorphous customary principles," the opinion added. "The sources we look to for resolution of al-Bihani's case are the sources courts always look to: The text of relevant statutes and controlling domestic case law. Under those sources, al-Bihani is lawfully detained."

All three judges on the appellate panel agreed al-Bihani's release should be denied, but one dissenter said international law does apply to the case. The ruling will apply to all Guantanamo detention cases, unless overruled by the full circuit court or the Supreme Court.
What this case means is that the United States will ignore 'international law' in determining how to fight the war on terror. Forget the Geneva Convention. Forget laws of war that depend on what's known as 'customary international law.' In this war, none of that applies.

If this stands, it's earth shattering (and yes, I agree with them).


At 10:59 PM, Blogger Rachel said...

Wikipedia has some very interesting information on Justice Brown. She's quite an individual.



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