This morning the U.S. Court of Appeals for the D.C. Circuit denied the petition for rehearing en banc in Al-Bihani v. Obama — only it did so with a two-page order and 111 additional pages of “statements” respecting the denial. The vote was unanimous, but there appears to be a fair amount of disagreement within the Circuit over the original panel’s discussion of the relevance of international law-of-war principles to the scope of the military’s detention authority.
As Steve Vladeck notes at Balkinization, all of the active judges on the court who were not on the original panel joined a statement stating that this question was not necessary to resolve the merits of the case. He finds this “dicta-ization” of the original panel’s reasoning to be a de facto grant of rehearing, even though the court suggests otherwise. He concludes: “Whatever the merits of the decision in Al-Bihani’s case, specifically, its significance in other cases has been unquestionably lessened (along with any chance that the Supreme Court would feel the need to step in).”
UPDATE: Lyle Denniston has more here.
PLR says:
Gotta love it when you get a panel of outliers, and a Supreme Court that can’t be bothered to handle more than a few dozen appeals on the merits in a term.
August 31, 2010, 12:59 pmDuffy Pratt says:
Does anyone else see the irony in a bunch of judges issuing an unnecessary statement condemning other judges unnecessary statements?
August 31, 2010, 1:36 pmSteve says:
Procedurally, this has to be about the weirdest way I have ever seen a holding overturned.
August 31, 2010, 2:03 pmGuy says:
Out of curiosity, is there authority for Kavanaugh’s claim that Erie altered the scope of Charming Betsy? As a matter of legal formalism, it seems strange to me that an interpretive canon would be affected by Erie.
September 1, 2010, 1:57 amRedman says:
Once again, I offer my opinion that ONLY the court’s majority opinion (and there wasnty even one here, in the traditional sense) should be published.
Concurrences, dissents, “statements”, etc., can be written and circulated amoung the judges til the cows come home, but publishing them adds nothing to what a court decision should do: advise the public of the result, provide the reasons, and provide the public with some comfort as to what the court would do with similar situations in the future.
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