Earlier today the U.S. Court of Appeals for the D.C. Circuit released its opinion in Al Bihani v. Obama, its first substantive post-Boumediene Guantanamo detainee habeas decision. In an opinion by Judge Janice Rogers Brown, the court rejected Al Bihani’s habeas claims, affirmed the district court’s denial of his habeas petition and embraced a fairly expansive assertion of the federal government’s detention authority. Judge Brown also wrote a short separate concurring opinion, and Senior Circuit Judge Stephen Williams wrote a separate opinion concurring in part and concurring in the judgment. Judge Brett Kavanaugh joined Judge Brown’s opinion for the court in full.
Unless it is overturned, this decision could be quite significant. SCOTUSblog has coverage here. University of Texas law professor Robert Chesney has also written a useful summary of the opinion for his national security law e-mail distribution list which I’ve reproduced below the fold.
There are many important holdings imbedded in the majority opinion by Judge Brown (joined by Judge Kavanaugh), which opens by explaining that the panel “aims to narrow the legal uncertainty that clouds detention” by addressing both the substantive scope of detention authority and the constitutional baselines for habeas procedure in this setting.
Substantive detention authority:
1. The international laws of war, as a body, do not constrain the authority conveyed by the AUMF.
The panel explicitly rejects the claim that the scope of authority conveyed by the AUMF must be limited with reference to international law (“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.”) (slip op. at 7). The panel adds that “the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks…[but] their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.” Id. The panel intimates that it found Al Bihani’s interpretation of those sources “unpersuasive” in any event, but makes clear in the end that it will interpret the AUMF based on “the text of relevant statutes and controlling domestic caselaw.” (slip op. at 8).
2. Military detention authority conveyed by Congress must be at least as broad as military commission jurisdiction conveyed by Congress, and thus the former category must include not just members but also supporters of forces engaged in hostilities against U.S. coalition partners.”
The idea here is, first, that the power to detain cannot be narrower than the power of a military commission to prosecute, and in fact probably is broader. Second, the revised scope of jurisdiction under the MCA 2009 extneds commission eligibility to persons who were part of al Qaeda or the Taliban and those who “purposefully and materially supported hostilities against the United States or its coalition partners.” (see MCA 2009, sec. 1802) (slip op. at 9).
3. The facts found against Al Bihani trigger both the membership and support prongs of this definition.
The “55th Brigade” of non-Afghan fighters, which Al Bihani concedes having been part of, was “an Al Qaeda-affiliated outfit” that “fought alongside the Taliban while the Taliban was harboring Al Qaeda.” (slip op. at 9). Al Bihani did not have any kind of formal membership card in the 55th, but his conceded actions (accompanying it to the battlefield, carrying a brigade-issued weapon, cooking for the brigade, retreating and surrendering with it) sufficed to show he was “part” of it. And even if not a “part” of it but instead an “independent contractor,” this would still trigger the “support” prong of the definition.
4. On the boundaries of the concept of support – outer bounds are unclear, but this is not at the outer bounds
The panel notes that the boundaries of support are unclear, but states that the category “clearly include[s] traditional food operations essential to a fighting force and the carrying of arms”. (slip op. at 10)
5. Important dicta regarding training camp and guesthouse attendance as grounds to detain standing alone:
In a footnote, the panel states that it does not rely on the contested government claim that Al Bihani also trained at AQ camps and stayed at AQ guesthouses. It then states, however, that “evidence supporting the military’s reasonable belief of either of those two facts with respect to a non-citizen seized abroad during the ongoing war on terror would seem overwhelmingly, if not definitively, to justify the government detention….” (italics added)(slip op. at 10 n. 2) (citing the 9/11 Comm. Report at 66-67) (describing the pre-9/11 training camp/guesthouse pipeline system).
6. Construction of the AUMF
The panel also states that the AUMF directly supports the result in this case insofar as “the actual and foreseeable result of the 55th’s defense of the Taliban was the maintenance of Al Qaeda’s safe haven in Afghanistan,” thus putting the “55th within the AUMF’s wide ambit as an organization that harbored Al Qaeda” even if not part of AQ itself. (slip. op. at 10-11)
7. Was the 55th Brigade entitled to an opportunity to declare neutrality?
The panel first reiterates its view that the customary law of war does not constrain the President, and then adds that this rule of co-belligerency in any event would not apply to a non-state actor.
8. Has the conflict with the Taliban ended as Al Bihani suggests, and would this terminate AUMF detention authority?
The panel rejects both suggestions.
9. Since the Taliban now fight as an insurgency rather than as “Afghanistan,” must the government prove that Al Bihani is likely to join the insurgency if released?
The panel concludes that this would not be required even if the laws of war applied in full to answer the question, citing the GPW Art. 118 requirement to repatriate POWs only at the conclusion of “active hostilities” (a functional rather than formal test). The panel also notes, however, that this decision ultimately “is a political decision, and we defer to the Executive’s opinion on the matter, at least in the absence of an authoritative congressional declaration purporting to terminate the war.” (slip op. at 13) (citing Ludecke, of course).
10. Should he nonetheless be released because the government wrongfully denied him POW status?
The panel denies that statute or caselaw compels a “clean hands” condition for detention that otherwise would be valid. The only caselaw to the contrary, the panel says, is Justice Souter’s opinion in Hamdi, which the panel notes is merely a dissent and which does not cite authority for the proposition.
Procedural Rules for Habeas Proceedings:
The panel addresses several important procedural questions, through the lens of whether the district court’s resolution of them contravened requirements derived from the Constitution’s Suspension Clause as interpreted in Boumediene. The general thrust of the panel’s opinion in this area is captured by its criticism that Al Bihani is attempting incorrectly to obtain “procedural parity with safeguards found in review of criminal proceedings.” (slip op. at 15).
1. As a threshold matter, the panel emphasizes that this decision involves the process due to a noncitizen captured in a foreign war zone.
The panel goes out of its way to note that “the procedures to which Americans are entitled are likely greater than the procedures to which non-citizens seized abroad during the war on terror are entitled.” (slip op. at 18 n. 3).
2. As a threshold matter, the panel observes that its rulings on habeas procedures will cast a shadow across the entire process of military operations.
The panel notes that the calibration of evidentiary and other requirements will have an influence throughout the chain of military activities.
3. Burden of proof – Preponderance
The panel rejects Al Bihani’s argument for a reasonable doubt or at least a clear-and-convincing evidence standard, and accepts that a preponderance standard would be constitutional. Notably, the panel drops a footnote to say that it is not excluding the possibility that a still-lower standard would be constitutional for non-citizens captured abroad, including “a some evidence, reasonable suspicion, or probable cause standard” (slip op. at 20 n. 4).
Perhaps more notably, the panel states that the Hamdi burden-shifting framework—in which the government must first present “credible” evidence of detainability, at which point the “onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria”—is consistent with its understanding of requiring the government to meet a preponderance standard. (slip op. at 20) (quoting Hamdi at 533-34).
4. Hearsay
The panel opens by noting that records of Al Bihani’s own interrogation statements are not hearsay but rather admissions by a party-opponent defined not to be hearsay by FRE 801(d)(2)(A). It also notes that the Confrontation Clause applies only to criminal proceedings and has no direct application here. Al Bihani instead has a right to some baseline degree of “reliability” derived from the requirement that the habeas proceeding be “meaningful.” (slip op. at 21-22).
“Therefore, the question a habeas court must ask when presented with hearsay is not whether it is admissible—it is always admissible—but what probative weight to ascribe to whatever indicia of reliability it exhibits.” (slip op. at 22) (construing Parhat v. Gates as consistent with this approach). The panel notes that these are bench trials, with the judges rather than juries acting as fact finders.
—-
The panel opinion rejects with brief discussion a handful of other issues, and then concludes.
Next follows a separate concurrence by Judge Brown, in which she follows the example set by Judge Hogan recently by using her opinion to expressly question whether it is wise to commit the construction of the substantive and procedural law of detention to a common law process that ordinarily “depends on incrementalism and eventual correction” through a “significant number of cases brought before a large set of courts, which in turn enjoy the luxury of time to work the doctrine supple.” (concurrence at 2). Congress, she writes, should step in. Judge Brown then concludes by describing the conflict in Afghanistan as but one aspect of hostilities between the United States and “Islamic extremists,” and stating that new rules are required.
Finally, Senior Judge Williams writes separately to concur in part and to concur in the judgment. Senior Judge Williams would not have reached any of the procedural issues, on the ground that Al Bihani conceded all the facts necessary to his detention. Senior Judge Williams also makes a point of questioning the majority’s assertion that the laws of war do not constrain the detention authority conveyed by the AUMF, asserting that this view conflicts with the plurality opinion in Hamdi combined with the Souter concurrence in Hamdi. Williams notes that the government had not advanced this view in its brief.
Those wishing to subscribe to Prof. Chesney’s National Security Law e-mail alerts may do so by sending an e-mail to his University of Texas law school e-mail address (available here).
Crunchy Frog says:
It was a sad day for California, but good one for the nation as a whole, when JRB was appointed to the DC Circuit.
January 5, 2010, 2:40 pmMark N. says:
Reading the concurrence-in-part-and-in-the-judgment from Williams, it reads almost like a dissent that happens to concur in the judgment. The only real point of agreement is that Al-Bihani may be detained because he admitted to having a role in some sort of military or para-military unit that was fighting the U.S., and his admission is admissible. But Williams doesn’t seem to accept the general framework or most of the other detention-authority portions of the ruling.
January 5, 2010, 3:05 pmBob from Ohio says:
As the saying goes, elections have consequences. Two Bush appointees.
I think the current administration would be happy–now that they are keeping the Yemenites at Gitmo.
January 5, 2010, 4:22 pmAmerican Psikhushka says:
Constitutional issues aside(it’s ridiculous) – we’re spending all these resources, time, and taxpayer dollars on an effing cook? Would letting him go in Afganistan really have more of an impact than wasting valuable resources and assets on him?
January 5, 2010, 5:30 pmHoward Gilbert says:
“Just a lowly, lowly cook.” Casey Ryback, Under Siege (1992)
January 5, 2010, 6:59 pmEnrique Armijo says:
The majority opinion is persuasive, but it’s hard to see why Judge Williams’s disposition isn’t more appropriate – if I am accused of facts X and Y, and I stipulate to X, and X alone is sufficient to convict/detain/etc. based on the offense with which I am charged, then the constitutionality of the standard of proof applied to Y, to take just one example, shouldn’t be relevant.
I also wonder what some of those who have expressed concerns here about judges and legislative independence would make of Judge Brown’s separate concurrence. Does the legislative independence concern go away so long as you don’t tell Congress what to put in the statute or amendment? And isn’t the majority’s deciding procedural questions it need not reach in some tension with the concurrence’s concerns about the common law’s capacity to resolve those questions?
January 5, 2010, 7:04 pmHoward Gilbert says:
“Of the 45,000 men available to the Taliban, Pakistani and Arab religious volunteers have played an increasingly important military role. The Arabs, deployed mostly on front lines north of Kabul, number an estimated 500 to 600 and form part of Osama bin Laden’s ’055 Brigade’. Pakistani volunteers are far more numerous.” Jane’s Defense, 8 Oct 2001.
The 055 Brigade that Al-Bihani cooked for was a front line unit of the main Taliban Army, although the unit was recruited, trained, and equipped by Al Qaeda. The fundamental principle of IHL is that every captured enemy soldier is to be treated the same as every other POW. The front line fighter who killed dozens of your men cannot be treated differently from the cook who spent the war peeling potatoes. A POW is not to be punished for what he did in combat. Conversely, the cook cannot claim to be excused from POW detention because he never fired a gun in combat.
However, admitted participants in the 055 Brigade are ideal test cases (from the government’s point of view). The legitimacy of their detention is self evident. If you can find some clown like Al-Bihani to raise all sorts of nonsense legal claims and procedural objections, you potentially get a wide ranging precedent like this that resolves all sorts of important legal issues under the most favorable set of facts. He is vastly more useful as a petitioner than he was as a soldier.
January 5, 2010, 7:35 pmChris Travers says:
I read the opinion and I can’t see why it is so expansive. Basically it seems to indicate that the executive has the right to detain, at a minimum, terrorists who will be put on trial and also prisoners of war. It doesn’t seem to say that it is necessarily broader than that. It just suggests that it includes both these sets.
It seems to me Al’Bihani is a classic prisoner of war. He can be detained until a stable government exists in Afghanistan. While I think that the termination of war is generally a political act, I think that as long as the executive has every reasonable benefit of the doubt that hostilities are ongoing, that he can be further detained.
What am I missing? What is the broad detention authority?
January 5, 2010, 7:49 pmRodger Lodger says:
I am so glad i caught this before retiring for the night. For five years and more I’ve had to listen to nonsense from the international law brigade and ACLU types who insisted we have criminal trials for all these people fighting us. If this opinion stands I shall be finally delivered from their ilk. And as far as some of the comments above that this guy is only a cook, have you seen One Two Three, a Billy Wilder film where James Cagney sarcastically tells a German (this is around 1960) “I know, you were only a pastry chef” (in the war).
January 5, 2010, 10:00 pmMost annoying to me was the day the Supreme Court ruled for habeas (statutory) and activist groups insisted that meant all of the Bill of Rights procedural protections were now applicable, when the Court had said no such thing. Hurrah for the D.C. Circuit!
American Psikhushka says:
Howard Gilbert-
“Just a lowly, lowly cook.” Casey Ryback, Under Siege (1992)
lol. Release him in Hollywood then, he can squint and star in action movies like the best of them. Or at least one of the “America’s got…” shows.
January 6, 2010, 12:15 amAmerican Psikhushka says:
Rodger Lodger-
And as far as some of the comments above that this guy is only a cook, have you seen One Two Three, a Billy Wilder film where James Cagney sarcastically tells a German (this is around 1960) “I know, you were only a pastry chef” (in the war).
That settles it, I wasn’t aware that Mr. Cagney had provided an opinion. I’ve got the hierarchy of authority now, it goes:
Mr. James Cagney, RIP, Thespian
The Constitution
Treaties
Federal Law
Most annoying to me was the day the Supreme Court ruled for habeas (statutory) and activist groups insisted that meant all of the Bill of Rights procedural protections were now applicable, when the Court had said no such thing. Hurrah for the D.C. Circuit!
I’m glad you’re so cheerful about losing your right to a jury trial, the right to challenge arbitrary imprisonment, etc. Because from what I can tell the new rules allow them to imprison indefinitely anyone the executive branch declares a “terrorist” or “unlawful enemy combatant” with essentially little or no review. King George III would have loved you.
January 6, 2010, 12:32 amAmerican Psikhushka says:
Chris Travers-
It seems to me Al’Bihani is a classic prisoner of war. He can be detained until a stable government exists in Afghanistan. While I think that the termination of war is generally a political act, I think that as long as the executive has every reasonable benefit of the doubt that hostilities are ongoing, that he can be further detained.
That basically amounts to indefinite detention, because one can always argue that Afghanistan is not stable, it is a fractious and tribal place. The political act should be to form a handover plan and bring the troops home as soon as possible.
January 6, 2010, 12:39 amMartinned says:
Well, not indefinite. Presumably the power to detain ends when the US involvement in the war ends. At that point, they will have to decide whether to set him free or transfer him to an ally.
January 6, 2010, 9:49 amAmerican Psikhushka says:
Martinned-
Well, not indefinite. Presumably the power to detain ends when the US involvement in the war ends. At that point, they will have to decide whether to set him free or transfer him to an ally.
Well, the thing is the US is not in an actual, officially declared war. The US is in a “War on Terror”, which is a construct. The enemy can be anywhere, since it is essentially a quasi-religious international group. So this is another instance of a creation of terms that the creators themselves (or their successors) interpret. Therefore detentions can be deemed to be permanent, indefinite, etc. at the discretion of the executive branch.
If it is eventually decided that there is no judicial review, this essentially means that the executive branch has the option of arbitrary, perpetual imprisonment unless the “War on Terror” is called off or the rules/legislation are changed. Since there will always be someone, somewhere angry at the US government, it is very easy to forsee this power being claimed perpetually.
January 6, 2010, 6:30 pmMartinned says:
The War on Terror isn’t a war, and Congress calling it a war doesn’t change that. (They didn’t, by the way.) There’s a war in Afghanistan, which is where this guy got captured. As soon as the US are out of Afghanistan – or on a generous reading out of AfPak – this guy has to be repatriated under art. 118 of Common article III. (Or transferred to one of our allies still fighting.)
January 7, 2010, 10:18 amAmerican Psikhushka says:
Martinned-
The War on Terror isn’t a war, and Congress calling it a war doesn’t change that. (They didn’t, by the way.) There’s a war in Afghanistan, which is where this guy got captured. As soon as the US are out of Afghanistan — or on a generous reading out of AfPak — this guy has to be repatriated under art. 118 of Common article III. (Or transferred to one of our allies still fighting.)
That’s still all open to executive branch definition. They could define the “War on Terror” as all counterterrorism operations worldwide, which means it could theoretically go on forever. Remember, the term used by the government itself is “indefinite detention”. They aren’t following the Constitution and they aren’t following the Geneva Convention or similar laws/treaties. They are creating terms and the interpretations of those terms and trying to avoid or minimize any type of judicial review. If successful this means they will be accountable to no one, including the Constitution, which is supposed to be the supreme law of the land.
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January 23, 2010, 3:21 amContinuity we have to believe in (part II) « Law, War and the State of the American Exception says:
[...] panel agreed that some international law applied to this war, a point that was made necessary given a recent DC Circuit ruling in the al Bihani case that international law did not regulate US detention practices. Given a strong sense that this [...]
March 30, 2010, 10:57 am