Crimes, War Crimes and the War on Terror

[jmm99]

The majority also considered and rejected a number of claims based on international law (pp. 6-7):

Al-Bihani challenges the statutory legitimacy of his detention by advancing a number of arguments based upon the international laws of war. He first argues that relying on “support,” or even “substantial support” of Al Qaeda or the Taliban as an independent basis for detention violates international law. As a result, such a standard should not be read into the ambiguous provisions of the Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001) (reprinted at 50 U.S.C. § 1541 note), the Act empowering the President to respond to the attacks of September 11, 2001. Al-Bihani interprets international law to mean anyone not belonging to an official state military is a civilian, and civilians, he says, must commit a direct hostile act, such as firing a weapon in combat, before they can be lawfully detained. Because Al-Bihani did not commit such an act, he reasons his detention is unlawful. Next, he argues the members of the 55th Arab Brigade were not subject to attack or detention by U.S. Coalition forces under the laws of co-belligerency because the 55th, although allied with the Taliban against the Northern Alliance, did not have the required opportunity to declare its neutrality in the fight against the United States. His third argument is that the conflict in which he was detained, an international war between the United States and Taliban-controlled Afghanistan, officially ended when the Taliban lost control of the Afghan government. Thus, absent a determination of future dangerousness, he must be released. See Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) art. 118, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135. Lastly, Al-Bihani posits a type of “clean hands” theory by which any authority the government has to detain him is undermined by its failure to accord him the prisoner-of-war status to which he believes he is entitled by international law.

The majority the generally dismissed these arguments via the portion of its opinion with which Judge Williams partially disagreed (p. 7):

Before considering these arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war. This premise is mistaken. There is no indication in the AUMF, the Detainee Treatment Act of 2005, Pub. L. No. 109-148, div. A, ###. X, 119 Stat. 2739, 2741–43, or the MCA of 2006 or 2009, that Congress intended the international laws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF. 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. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 111(3)–(4) (1987). Even assuming Congress had at some earlier point implemented the laws of war as domestic law through appropriate legislation, Congress had the power to authorize the President in the AUMF and other later statutes to exceed those bounds. See id. § 115(1)(a). Further weakening their relevance to this case, the international laws of war are not a fixed code. Their dictates and application to actual events are by nature contestable and fluid. See id. § 102 cmts. b & c (stating there is “no precise formula” to identify a practice as custom and that “[i]t is often difficult to determine when [a custom’s] transformation into law has taken place”). Therefore, while the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks, see Hamdi, 542 U.S. at 520, 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.

Much of this is correct, but it may give the wrong impression as to the definitive rules of international law accepted by the US (e.g., Hague and 1949 Geneva), as well as the peculiar US Laws of War which have developed since the Lieber Code of 1863.

What the majority was really addressing (and which it was rejecting) seems to lie in this paragraph (p.8):

Therefore, putting aside that we find Al-Bihani’s reading of international law to be unpersuasive, we have no occasion here to quibble over the intricate application of vague treaty provisions and amorphous customary principles. The sources we look to for resolution of Al-Bihani’s case are the sources courts always look to: the text of relevant statutes and controlling domestic caselaw.

That is, "the intricate application of vague treaty provisions and amorphous customary principles."

In that I concur. The flow of I Law into US positive law is illustrated by this chart (note the Hague and Geneva flows):

I Law Flow 01.jpg

Incorporation of other treaties, and especially of "customary international law", is a murky area. The majority was well advised in not going there where clear statutory authority existed for its decision.

That having been said, there were arguments against the detainee that could have been advanced by the court, based on US traditional Laws of War and the Hague and Geneva Conventions accepted by the US. Perhaps, the DoJ did not make those arguments.