# "Wide Detention Power Upheld" **URL:** \ **Category:** Great Debates\ **Created:** [January 6, 2010, 7:04pm UTC](https://boards.straightdope.com/t/wide-detention-power-upheld/523933 "2010-01-06T19:04:34Z")\ **Posts on this page:** 7\ **Page:** 1
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 6, 2010, 7:04pm UTC](https://boards.straightdope.com/t/wide-detention-power-upheld/523933/1 "2010-01-06T19:04:34Z")
Quotes around the post’s title because I lifted it wholesale from [SCOTUSblog](http://www.scotusblog.com/wp/wide-detention-power-upheld/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+scotusblog%2FpFXs+%28SCOTUSblog%29). In short: > [@](#): > > The D.C. Circuit Court, filling in some of the legal blanks left by the Supreme Court on the president’s power to detain terrorist suspects, on Tuesday upheld the broadest view the government has taken of that authority, and ruled that the power is not limited in any way by international law, including the law of war. Only domestic law controls whom the president may detain, and those home-grown legal concepts sweep widely, the appeals court ruled. It’s discussing _Al-Bihani v. Obama_, which can be read [here](http://caselaw.findlaw.com/data2/circs/dc/095051p.pdf) (PDF file). > [@DC Circuit](#): > > Al-Bihani’s many arguments present this court with > two overarching questions regarding the detainees at the > Guantanamo Bay naval base. The first concerns whom the > President can lawfully detain pursuant to statutes passed by > Congress. The second asks what procedure is due to > detainees challenging their detention in habeas corpus > proceedings. > . > . > . > 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, tit. 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 “\*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. And… > [@](#): > > The statutes authorizing the use of > force and detention not only grant the government the power to > craft a workable legal standard to identify individuals it can > detain, but also cabin the application of these definitions. The > AUMF authorizes the President 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.” > . > . > . > With the government’s detention authority established > as an initial matter, we turn to the argument that Al-Bihani > must now be released according to longstanding law of war > principles because the conflict with the Taliban has allegedly > ended. . . . The determination > of when hostilities have ceased is a political decision, and we > defer to the Executive’s opinion on the matter, at least in the > absence of an authoritative congressional declaration > purporting to terminate the war. See Ludecke v. Watkins, 335 > U.S. 160, 168–70 & n.13 (1948) (“[T]ermination [of a state of > war] is a political act.”). Al-Bihani urges the court to ignore > Ludecke’s controlling precedent because the President in that > case had pronounced that a war was ongoing, whereas in this > case the President has made no such pronouncement. We > reject Al-Bihani’s entreaty. A clear statement requirement is > at odds with the wide deference the judiciary is obliged to give > to the democratic branches with regard to questions concerning > national security. In the absence of a determination by the > political branches that hostilities in Afghanistan have ceased, > Al-Bihani’s continued detention is justified. Correct on all counts. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [January 6, 2010, 7:28pm UTC](https://boards.straightdope.com/t/wide-detention-power-upheld/523933/2 "2010-01-06T19:28:41Z")
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? ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [January 6, 2010, 7:28pm UTC](https://boards.straightdope.com/t/wide-detention-power-upheld/523933/3 "2010-01-06T19:28:49Z")
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. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 6, 2010, 9:05pm UTC](https://boards.straightdope.com/t/wide-detention-power-upheld/523933/4 "2010-01-06T21:05:20Z")
Perhaps correct by the letter of the law, but violently in opposition to its spirit. Nothing new, IOW. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 6, 2010, 10:07pm UTC](https://boards.straightdope.com/t/wide-detention-power-upheld/523933/5 "2010-01-06T22:07:48Z")
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. ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [January 7, 2010, 11:11pm UTC](https://boards.straightdope.com/t/wide-detention-power-upheld/523933/6 "2010-01-07T23:11:08Z")
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. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [January 8, 2010, 1:41am UTC](https://boards.straightdope.com/t/wide-detention-power-upheld/523933/7 "2010-01-08T01:41:13Z")
Fixed the broken quote tag in the first quote.