Al-Bihani, not so charming.

• Author: Walsh, Cara Maureen
• Position: Habeas corpus

ABSTRACT

In June 2008, the Supreme Court extended the Suspension Clause to foreign detainees at Guantanamo Bay, Cuba. Since then, courts have struggled to define appropriate standards to govern detainee habeas corpus petitions. Until recently, no court questioned the relevance of international law to the development of these standards. But, in January 2010, a D.C. Circuit panel held that international law does not constrain executive detention power. That decision could devastate detainee habeas corpus petitions by preventing courts from examining the heart of the government's own claimed detention authority.

This Note evaluates the proper role of international law during ongoing Guantanamo detainee habeas corpus litigation through an examination of the D.C. Circuit panel's legal analysis in Al-Bihani v. Obama. Because international law has always played a role in U.S. jurisprudence, judges already have the necessary tools to grapple with the international legal issues that the detainee cases present. In light of the Legislature's refusal to develop appropriate standards to govern these cases, the Judiciary must use these tools to balance national security with individual liberty.

TABLE OF CONTENTS I. INTRODUCTION II. INTERNATIONAL LAW IN U.S. COURTS: THE CHARMING BETSYDOCTRINE A. Historical Treatment of International Law in U.S. Courts Under the Charming Betsy Doctrine B. Charming Betsy After the Military Commissions Act 1. Constitutional Issues Raised by Precluding the Courts from Looking to the Geneva Conventions 2. Issues Raised by the Military Commissions Act [section] 5 3. Delegated Interpretations III. AL-BIHANI V. OBAMA A. Background and Facts B. The Court's Legal Reasoning C. Al-Bihani v. Betsy IV. WHAT IS A "REASONABLE" INTERPRETATION OF INTERNATIONAL HUMANITARIAN LAW DURING THE GUANTANAMO HABEAS HEARINGS? A. Binding Domestic Authorities B. General Principles of International Humanitarian Law C. The Detention of Al-Bihani V. CONCLUSION I. INTRODUCTION

In June 2008, the Supreme Court's decision in Boumediene v. Bush extended the Suspension Clause to foreign nationals at Guantanamo Bay, Cuba. (1) However, the Court's analysis left crucial questions unanswered. Some of these questions--such as what to do with detainees once they are released from U.S. custody--are primarily political. (2) But at least one has been left for the courts to decide. Now that Guantanamo Bay detainees can challenge their detention in U.S. courts, (3) what is the extent of the President's authority to detain them? (4)

The President's detention power is an "important incident to the conduct of war," (5) meant to "prevent captured individuals from returning to the field of battle and taking up arms once again." (6) After September 11, the President's detention authority derives from the 2001 Authorization for Use of Military Force (AUMF). (7) Yet, the procedural and substantive rules governing these detentions remain undefined, and the Supreme Court has left this task to the lower courts. (8)

Until recently, no court questioned the relevance of international law to the development of these rules. That changed in January 2010 when, in Al-Bihani v. Obama, a three-judge panel of the D.C. Circuit Court of Appeals broadly held that international law does not place any constraints on the Executive's war powers, absent an explicit congressional declaration to that effect) That ruling will most likely create binding precedent, preventing courts from considering international law-based challenges to the Government's asserted legal authority to detain. (10) Yet, the Executive itself partly bases its detention authority on international law. (11) For that reason, many Guantanamo detainee habeas petitions also rely on international legal principles. (12) Thus, left undisturbed, Al-Bihani has the potential to cripple detainee habeas corpus review.

This Note evaluates, through an examination of Al-Bihani, the proper role of international law during Guantanamo detainee habeas corpus litigation. Part II outlines the Supreme Court's historical treatment of international law and discusses the ramifications of the Military Commissions Act of 2006 (MCA), which precludes detainees from relying on the Geneva Conventions as a source of rights in civil actions against the U.S. government (13) and delegates authority to the President to interpret the meaning and application of the Geneva Conventions. (14) Part II also suggests a method of incorporating international law into judicial review that is both faithful to domestic constraints and familiar to most lawyers--namely, the Chevron doctrine. Part III examines Al-Bihani. Finally, Part IV revisits Al-Bihani's petition for habeas corpus and applies Chevron to the specific facts of the case, thus illustrating the ease and practicality with which the courts could consider the international law obligations of the United States as they develop rules to govern detainee habeas corpus challenges.

2. INTERNATIONAL LAW IN U.S. COURTS: THE CHARMING BETSY DOCTRINE

   Despite broad assertions in Al-Bihani, (15) courts have construed domestic legislation in accordance with international law for more than two hundred years. (16) Since at least 1801, the Supreme Court has consistently held that, where possible, courts should interpret U.S. law to conform to the international legal obligations of the United States. (17) Recent statutory amendments do preclude individuals from invoking the Geneva Conventions as a source of rights in certain civil actions, (18) but these provisions do not affect the use of international law as an interpretive canon.

   1. Historical Treatment of International Law in U.S. Courts Under the Charming Betsy Doctrine

      For more than two hundred years, the Supreme Court has held that international law informs U.S. law, particularly in the context of international humanitarian law. (19) In 1801, the Court held that "Congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed." (20) More famously, the Court explicitly ruled three years later, in Murray v. Schooner Charming Betsy, that domestic legislation "ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights or to affect neutral commerce further than is warranted by the law of nations as understood in this country." (21) This principle came to be known as the Charming Betsy doctrine.

      Under Charming Betsy, courts deciding between different plausible interpretations of a law must presume that the text complies with the United States' obligations under binding treaties and accepted principles of customary international law. (22) Supreme Court cases have consistently followed this doctrine. (23) For example, at the turn of the last century, the Court explicitly integrated customary international law into its ruling in Paquete Habana. (24) In that case, the Court assessed the legality of the U.S. Navy's seizure of two coastal fishing vessels during the Spanish-American War in the absence of controlling domestic law. (25) The Court affirmed that U.S. courts should analyze the question under principles of international law. (26) Under these principles, "coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war." (27) Thus, because international law did not permit the Navy's seizure of The Paquete Habana, the Court held that the seizure was illegal. (28)

      Of course, the political branches retain the power to disregard international law, at least insofar as U.S. courts are concerned. Under Charming Betsy, a "controlling executive or legislative act or judicial decision" forecloses courts from considering international law. (29) Congress can thus prevent courts from considering international law by clearly stating that it intends a piece of domestic legislation to contravene international law. (30) And, to the extent the President acts pursuant to executive authority rather than congressional authorization, Charming Betsy is unnecessary because courts do not need to construe any law. (31) Thus, courts only employ Charming Betsy when the President acts pursuant to congressional authorization that does not clearly contravene international law. (32) In such cases, courts use Charming Betsy to say "what the law is," (33) and courts "refuse to automatically defer to the executive, even when its views are clear and those of Congress are not." (34) This means that they will "occasionally use the canon to defeat the interpretation offered by the government." (35)

      Charming Betsy remains alive in modern jurisprudence. The Supreme Court has not overruled the doctrine and has explicitly considered it as recently as 2004. (36) The Court's post-September 11 opinions have also been consistent with the doctrine. (37) For example, in Hamdi v. Rumsfeld, the Court determined that the AUMF permitted the government to hold a U.S. citizen captured in a foreign country as an enemy combatant, in part because international law permitted the detention. (38) Similarly, in Hamdan v. Rumsfeld, the Court declined to defer to the Executive's view of the Geneva Conventions and, instead, undertook its own analysis that extended the protections of Common Article 3 to those detainees. (39)

      In light of the doctrine's continued viability, courts should, if possible, interpret domestic laws to comply with the United States' international law obligations. (40) Congress must intentionally deviate from international law to foreclose this method of interpretation. (41) And, though the President may authoritatively interpret international law when acting pursuant to executive authority, courts may...