"Wide Detention Power Upheld"

Quotes around the post’s title because I lifted it wholesale from SCOTUSblog.

In short:

It’s discussing Al-Bihani v. Obama, which can be read here (PDF file).


Correct on all counts.

What would prevent the US from throwing Dick Cheney into detention as an unlawful combatant? Next time he leaves the country, detain him at the border when he re-enters, and tag him with that apparently unassailable designation that renders the subject in legal limbo which requires him to prove his innocence?

Doesn’t this strike you as a way for the government to eliminate their political opponents, simply by declaring them terrorists?

Boy, I’m no legal expert, but it sure seems that this ruling would permit soldiers to commit certain atrocities (perhaps intentionally targeting non-combatants, or use of weapons prohibited by treaty) that are prohibited by the laws of war, yet not specifically prohibited by US law.

If this is indeed the case, one could imagine that if a soldier would object to an order as being unlawful under the laws of war, then he wouldn’t have a valid reason to object to the order if the US Code happened to be silent on the subject.

That alarms me.

Perhaps correct by the letter of the law, but violently in opposition to its spirit. Nothing new, IOW.

I’ll wait until the Supremes weigh in, assuming it’ll get bump upstairs. I have to say, though, that I would be surprised if they overturned this ruling as long as we’re talking about non-US citizens captured outside US territory.

Still, it’s clear that they are saying: Hey, Congress, it’s your job to declare and undeclare war.

re: Only domestic law controls and not limited in any way by international law. The court reasoned that because the AUMF statute that authorizes detention (and the MCA and DTA) did not mention international law, then it need not be considered. I was told by someone helping the defense that this logic is wrong. There is a presumption international law would apply (or Congress would not want to ignore it), unless the statute explicitly states international law should not apply. The domestic statutes do not mention international law, so it should be presumed to apply, and it seems the courts logic is faulty regarding this aspect.

If the court would have considered international law regarding detention as Al-Bihani urged, whether it would or would not have changed the outcome for him, I’m not sure. The Supreme Court has said this is an “armed conflict” and detention power can appropriately be read into the AUMF during an armed conflict. Al-Bihani was a cook for a Taliban fighting force trained by Al Aqaeda; that would seem to be enough “support” of the proper enemy to qualify under the current definition of enemy belligerent (and under the previous definition used to detain him). That is extremely broad, and I really didn’t go to deeply into each of Al-Bihani’s arguments, either. Obviously international law would have helped his case, which is why he argued it.

Fixed the broken quote tag in the first quote.