Today’s important D.C. Circuit decision in Al Bihani v. Obama held that international law does not in any way constrain the president in the exercise of his executive authority under the 2001 Authorization for the Use of Military Force that gave him the power to wage war against al Qaeda and its allies. I am no great enthusiast for the incorporation of international law into domestic jurisprudence (see here and here). Nonetheless, I fear that the D.C. Circuit has gone too far here. According to the majority opinion written by Judge Janice Rogers Brown:
Before considering [the detainee's] 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, … 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.
It is certainly true that Congress has never enacted a statute requiring the president to follow “[t]he international laws of war as a whole.” But it has compelled the executive to follow those international laws embodied in treaties such as the Geneva Convention that have been duly ratified by the Senate. Article VI of the Constitution clearly states that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” Such treaties are therefore binding on the president, as on other government officials. Judge Brown points out that the AUMF and later legislation did not expressly state that these treaties bind the president. However, they don’t have to. The treaties – like other duly enacted laws – are binding of their own force and don’t need to be reiterated in later statutes.
It’s possible that Brown means to argue that these treaties were binding before 2001, but that the AUMF repealed them in so far as they might limit the president’s actions in the War on Terror. I don’t see any indication of that in the text of the AUMF, the relevant portion of which gives the president the authority to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
Indeed, the text only gives the President the power to use force that is both “necessary” and “appropriate.” Presumably, the word “appropriate” applies only to such force as is legally permitted under American law governing the wartime use of military force. Otherwise, that term would be superfluous. Moreover, when the AUMF was enacted, no one in Congress or the Bush administration claimed that it freed the President of all treaty-based restraints on his wartime conduct. If the resolution were understood to be making such a radical departure from previous legal rules, it would surely have been pointed out and debated at the time. The Supreme Court has often stated that it disfavors interpreting new laws as repealing old ones “by implication.” Surely that rule is especially appropriate in a case like this one, where the asserted implied repeal is so sweeping. Indeed, the Court has ruled that “[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” There is no such irreconcilability here, since the text of the AUMF can easily be interpreted as permitting only such force as is permitted by previous US law governing the wartime use of military power.
It is true, as the Supreme Court ruled in the Medellin case, that some treaties duly ratified by the Senate are not enforceable in Court. But that is not true of all treaties with provisions restricting wartime conduct. Indeed, the Supreme Court has in fact enforced some of these treaties as recently as the Hamdan v. Rumsfeld in 2006.
The D.C. Circuit was on firmer ground in denying that the president is required to follow customary international law, treaties that have not been ratified by the Senate, or other international law materials that have not been incorporated into American domestic law by the US legislative process. John McGinnis and I defended that position at length here. For reasons we explained in that piece, there is good reason to block such “raw international law” from overriding the domestic law of liberal democracies. However, defensible skepticism about international law doesn’t justify the conclusion that the US can never enter into binding international agreements that restrict the president’s wartime actions. Neither does it justify concluding that the AUMF swept away preexisting legal restrictions on the wartime use of force.
I agree with most of the rest of Judge Brown’s reasoning, and I think the court was right to uphold the president’s power to detain Al Bihani. As Judge Stephen Williams pointed out in his concurring opinion (which also rejected the majority argument criticized here), Al Bihani himself admitted that he served an armed unit allied with the Taliban and al Qaeda, and carried a weapon as part of his duties. That is ample reason to detain him as an enemy combatant – even if his primary work was to cook for the enemy fighters rather than participate in combat directly, and even if (as he claimed) he was working for the unit as an independent contractor rather than a full-fledged member. But the D.C. Circuit should have reached that conclusion without ruling that the president’s use of executive power in the War on Terror is completely unconstrained by international law of any kind.
UPDATE: I should have noted that the Military Commissions Act of 2006 does prevent War on Terror detainees from filing claims based on the Geneva Convention. However, that still does not foreclose all international law claims.