Will En Banc Review Denial “Law Review” Opinions in al-Bihani Case Instruct the Supreme Court?

It’s not often that unanimous denials for en banc rehearing are accompanied by an opinion, let alone four separate written statements, two of which were 15 and 87 pages long.

But on Tuesday, August 30, the judges of the U.S. Court of Appeals for the District of Columbia Circuit deviated from tradition and offered an order which seemingly opened the door to judicial consideration of “gauzy” (as Senior Judge Williams termed it in his opinion) international law norms in cases involving American wartime conduct.

The case in question is Al-Bihani v. Obama, in which a Guantanamo prisoner challenged his detainment despite his verified involvement in an Al Qaeda brigade.  The D.C. Circuit’s original ruling, written by Judge Janice Rogers Brown, argued that the President of the United States could lawfully detain Al-Bihani as an enemy combatant pursuant to the 2001 Authorization for Use of Military Force (AUMF).  Judge Brown’s majority opinion further asserted that Congress did not intend that this presidential power be limited by international law or other international agreements.

Al-Bihani asked that the court rehear this decision en banc.  All nine D.C. Circuit judges rejected this request.  But seven of the judges signed a one paragraph note suggesting that Judge Brown’s discussion of international law in the original opinion was not material to the decision.

The two remaining judges—Brown and Brett M. Kavanaugh—met this opinion with a combined 102 pages of text substantiating Brown’s original opinion.

Considering Brown and Kavanaugh had already won the day with the denial of en banc review, the question becomes why did they find it necessary to write veritable law review articles on the issue?  To give their law clerks an academic workout?  Unlikely.  The case is liable to be appealed to the Supreme Court, and the Court’s justices will undoubtedly look to the significant work done by Brown and Kavanaugh for guidance.

Brown and Kavanaugh honorably upheld the position of an autonomous United States, but the fact remains that seven judges on what is called the “second most important court in America” insinuated that international law should be interjected into American law, even though the AUMF was entirely silent on the matter.

This notion—that American politicians acting in time of war should be fettered by international restraints—is one that WLF routinely opposes.  In a WLF paper published in May on this same case, Thomas R. McCarthy celebrated the clarity with which Judge Brown stated that “international law does not limit the President’s detention authority and that the Suspension Clause guarantees detainees who petition for habeas review only a limited procedural entitlement.”

One can only hope that after reading the 102 pages produced by Judges Brown and Kavanaugh that the Supreme Court reaches the same conclusion.