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).
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.
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