By Gabor Rona, International Legal Director and Interim Director, Law and Security Program, crossposted from Huffington Post
You could almost feel the pleasure taken by Judge Janice Rogers Brown in her opinion in al-Bihani vs. Obama (Jan. 5 – D.C. Circuit Court of Appeals), concluding that the international laws of armed conflict have no bearing on the scope of government power to decide who may be detained as a wartime enemy. It wasn’t in her grandiloquent declaration that war trumps law (“War is a challenge to law, and the law must adjust”) and it wasn’t in the brazenness of this staunch conservative’s extreme judicial activism. No, it was in a simple, almost invisible, aside; a gratuitously deprecating retort to the petitioner’s claim that the lower court ruling against him was erroneous: “Al-Bihani’s argument clearly demonstrates error, but that error is his own.” Or, as I would say on the 5th grade playground when Freddy Harris called me a jerk, “I know you are, but what am I?”
OK, this is far from the most egregious display of judicial distemper on any given day. Still, it is not such a stretch to see Judge Brown’s smack-down of the litigant and her treatment of the rule of law as parts of an imperious whole.
But let’s focus on the law. And on the Judge’s curious dismissal of international law applicable to detention in armed conflict. There is, says Judge Brown, “no occasion… to quibble over the intricate application of vague treaty provisions and amorphous customary principles.” Well, tell that to the Supreme Court, which in its majority opinion in Hamdi made express reference to the international laws of war as a source of interpretive guidance on the scope of detention authority under the 2001 Congressional Authorization for the Use of Force (AUMF). That would be the same Supreme Court which, in Hamdan, decided that Guantanamo detainees are, indeed, protected by the Geneva Conventions.
Over at Balkanization, Deborah Pearlstein notes that Judge Brown invokes the President’s Constitutional War Powers as authority to trump the international laws of war, but then ignores the same President who, like the Supreme Court, construes those war powers to be informed by the laws of war. Admittedly, the torture lawyers of the Bush administration hawked a vision of War Powers much like that of Judge Brown: unconstrained by international law. But is this Court also suggesting that the executive’s vast powers in matters of war do not include the competence to determine that it will abide by its international legal obligations? Looks more like an exercise in judicial war powers, a citation for which I cannot find in the Constitution.
We all recall Attorney General Alberto Gonzales’ characterization of the Geneva Conventions as quaint. More recently, U.S. Ambassador to the U.N. Susan Rice, on the occasion of the 60th Anniversary of the Geneva (most widely ratified international treaties in the world) Conventions said:
In recent years, some have called the Geneva Conventions outdated . . . If
anything, the conflict we are waging today in Afghanistan, and the struggle
against violent extremists and terrorists more broadly, make the Geneva
Conventions even more relevant and important. . . . Our enemies may reject the
values embodied in the Geneva Conventions. But that is just the point. . . . As
Senator McCain so rightly said when he challenged the Congress to reject
torture, this is not about who our enemies are – ‘it is about who we are.’
Looks like Judge Brown will have none of that. She would, instead, force-feed the President a hefty helping of her “Geneva is quaint” pie.