Al-Bihani’s petition asked the court to rehear the case especially in order to resolve this issue. In a statement by Chief Judge David Sentelle, joined by a majority of the court, the panel issued an unusual one-paragraph note saying that they viewed Judge Brown’s and Judge Kavanaugh’s discussion of international law as irrelevant to deciding Mr. Bihani’s fate.
“We decline to en banc this case to determine the role of international law-of-war principles in interpreting the AUMF because, as the various opinions issued in the case indicate, the panel’s discussion of that question is not necessary to the disposition of the merits.”
Stephen I. Vladeck, an American University law professor who filed a friend-of-the-court brief asking the court to rehear the case, said in the NYT that he note amounted to a nullification of the more sweeping parts of the January ruling without the court bothering to rehear it. The paragraph, he said, tells the world that the section of the January ruling about international law should be treated like what lawyers call “dicta” — editorializing about issues that are not necessary to decide the matter at hand, which has little controlling authority for other cases.
“They’ve basically removed the single biggest complaint people had with that opinion,” Mr. Vladeck said. “They said, ‘We don’t think we need to rehear the whole case just to limit the opinion — we can just say it, and going forward this is how we understand it.’ That matters a lot.”
The three members of the original panel, Judges Brown, Kavanaugh, and Williams, each appended a very long opinion explaining their further views whether and how international law affects the President’s powers to conduct the war on terrorism under the authority granted to him by Congress in the September 11 resolution authorization the use of military force (the AUMF).
Judge Brown attacked her seven colleagues for appending “a cryptic statement” that she said would “muddy the clear holding” that international law does not limit the war powers Congress authorized.
Judge Kavanaugh defended the proposition that only rules explicitly enacted by Congress, not international laws of armed conflict, can constrain what an American president can do in wartime. “International law is not a judicially enforceable limit on a president’s wartime authority unless Congress expressly says it is,” he wrote with emphasis.
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