Sunday, January 10, 2010

Court Upholds U.S. Law

You might think that would be a normal function of a U.S. federal court. But there are those who think that international law -- or what they interpret as "law," should take precedence, apparently including the UPI writer, who seems upset at the ruling. The case involved a Yemeni prisoner at Guantanamo, Ghaleb Nassar al-Bihani. In his petition for release, al-Bihani

challenged "the statutory legitimacy of his detention by advancing a number of arguments based on the international laws of war," the appeals court majority opinion said. Al-Bihani argued "'support,' or even 'substantial support' of al-Qaida or the Taliban as an independent basis for detention violates international law
Leaving aside the fact that a hostile alien captured in wartime shouldn't even be filing legal actions, there are obviously no universally accepted "laws of war." The court rightly rejected such nonsense.
putting aside that we find al-Bihani's reading of international law to be unpersuasive, we have no occasion here to quibble over the intricate application of vague treaty provisions and amorphous customary principles," the opinion added. "The sources we look to for resolution of al-Bihani's case are the sources courts always look to: The text of relevant statutes and controlling domestic case law. Under those sources, al-Bihani is lawfully detained.
It's nice to see a high level U.S. court reaffirm that the legality of U.S. actions are defined by U.S. laws. It's unfortunate that even needs to be stated, and that one of the three judge panel dissented from the opinion.


  1. Judicial activism suits conservative judges as poorly as it does liberal juges. Vaguely-defined principles of "international laws of war" are one thing, ratified treaties to which the United States is signatory are another. If the question presented by al-Bihani rested on valid treaties and laws, then the Court is supposed to wade through the intricate application of the language therein and determine whether they compel release or not. It is patently not the case that the "old rules no longer apply" simply because Judge Brown thinks they do not, and if the rules have changed then it is incumbent upon Congress to create new laws and if necessary proposed amendments to the Constitution and incumbent upon the President to re-negotiated established treaties, such that our legal system can address our new environment. Until and unless that happens, the old rules apply because this is a nation of laws. I have no problem with the court excluding uncodified notions of international law from the universe of laws that it will apply to a case before it, but I do have a problem with a court abdicating its authority and responsibility to resolve matters properly presented to it. Unfortunately, the article linked does not provide enough guidance to determine which of the two is going on. So let us not be so quick to praise Judge Brown simply because we like the result in this individual case.

  2. "Judicial activism suits conservative judges as poorly as it does liberal juges."

    How is this activism? The decision doesn't say the president can do whatever he wants in wartime, just that al-Bihani's case is baseless because U.S. law says his detention is legal.