Reflections on Al-Bihani -- Part II

Jack Goldsmith
Tuesday, September 7, 2010, 1:27 PM
Judge Brown’s statement in the Al-Bihani rehearing denial sparks three thoughts: 1.

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Judge Brown’s statement in the Al-Bihani rehearing denial sparks three thoughts:
1.          Judge Brown complains that the effect of the rehearing denial – especially the non-panel judges’ statement that the panel’s law-of-war analysis was “not necessary to the disposition of the merits – is to “muddy” the panel holding that international law “does not limit the AUMF’s grant of war powers.”  As Ben pointed out, it was Judge Brown’s panel opinion that muddied the waters; the relevance of the laws of war to interpreting the AUMF was, until that opinion, an important point of consensus among courts and the government.  This was especially unfortunate because Judge Brown’s one-paragraph dismissal of international law in the panel opinion was analytically weak.  It reasoned that the laws of war were irrelevant to interpreting the AUMF because the AUMF’s text did not mention them and Congress had not “implemented” them.  This is weak because, as I explained in my last post, courts have long interpreted war authorizations and presidential war powers in light of the laws of war in the absence of express congressional sanction, doing so does not (always, or even usually) depend on the laws of war being part of domestic federal law, and the Hamdi plurality implied that this was the right approach to interpreting the AUMF.  Judge Kavanaugh probably wrote his 87-page opinion on the topic to buck up the panel’s weak international law analysis.
2.         Judge Brown’s opinion is filled with overstatement.  I seriously doubt that the non-panel judges denied the rehearing petition “to leave open a possibility – however slight – that domestic statutes are in fact subordinate to an overarching international legal order.”  Some scholars wish this, but that cannot be what republican appointees Sentelle, Ginsburg, Henderson, and Griffith, or for that matter democratic appointees Rogers, Tatel, and Garland, were thinking.  Nor is it fair to say that Judge Williams’ international law analysis embraces the idea that judges should “usurp the legislative role and dictate to Congress what it is supposed to think.”  Judge Williams argues, rather, that under the Hamdi plurality (which Judge Brown distinguishes unpersuasively), judges divining what Congress meant in the AUMF can look to settled principles of the laws of war, and that the President’s understanding of these laws warrant “great weight.”
3.         Judge Brown is worried at bottom about what she calls the “unpredictable and ad hoc rules judges would draw from the primordial stew of treaties, state practice, tribunal decisions, scholarly opinion, and foreign law that swirls beyond our borders.”  Habeas petitioners’ briefs are filled with a bewildering array of international and scholarly citations that on their face seem to support petitioners’ claims.  These citations are often little more than a congeries of non-authoritative sources that are piled up high in the hope that some judge will deem them, by virtue of their height and heft, to reflect customary international law binding on the United States.  But it can be hard to tell why these sources are non-authoritative, and the easier course sometimes seems simply to declare them entirely irrelevant to domestic law in the absence of congressional guidance to the contrary.   As I and others have long argued, and for reasons that Judge Kavanaugh clearly explains on pages 15-21 of his statement, this is the right approach when the question is whether these international sources reflect customary international law that is automatically incorporated wholesale, without congressional authorization, into domestic federal law.  But the issue in Al-Bihani is not the automatic wholesale domestic incorporation of customary international law.  Rather, the issue is the use of the international laws of war as a canon to divine congressional intent, something courts have long done.  In this context, courts should not put up a roadblock to consideration of international sources.  They should instead insist that these sources reflect a true practice and normative consensus among nations before using them as a tool to interpret the AUMF.  Most and probably all of the international norms invoked in the GTMO habeas petitioners’ briefs will fail this test, especially when the Executive branch is given proper deference on the question.   Courts that take international seriously in interpreting the AUMF will thus impose no undue constraints on the government’s ability to wage war effectively.  But they will help to beat back the many extravagant claims made on international law's behalf.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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