ACLU Loses Big on a War-Fighting Decision


ACRU Staff


January 11, 2010

Over the objections of the ACLU and allied lawyers, the D.C. Circuit Court of Appeals has ruled that a Yemini man who joined the Taliban and Al-Qeada to fight against US-led opponents could be detained at Gitmo prison indefinitely. This decision is binding on all federal courts unless altered by that whole Court, or reversed by the US Supreme Court.

Some of the facts for this article, but not all of the legal conclusions, come from a website called Leagle, reporting on recent decisions. One concerning detainees at Gitmo was just handed down by the D.C. Circuit Court of Appeals, which hears the cases challenging detentions at Gitmo.

In a 2-1 decision, with the majority decision written by Janice Rogers Brown, the Court found that American law and the American constitution governed the case, and not international law, and that the continued detention at Gitmo of Ghaleb Nassar al-Bihani, a Yemeni citizen, was legal.

The dissenting Judge agreed with the majority that al-Bihani’s continued detention was legal, but disagreed with the majority that international law should not apply in his case.

The facts showed that al-Bihani traveled through Pakistan to Afghanistan to join the fight against those seeking to overthrow the Taliban-run government of that nation. He stayed in Al-Qaeda safe houses on his way. He joined the 55th Arab Brigade, which surrendered to the US-led coalition which defeated the then-Taliban government of Afghanistan. He was turned over to US custody.

The ACLU and other lawyers had argued that al-Bihani was “a civilian” and should be immediately released to his own nation, Yemen.

Here is the money quote from the majority opinion: “There is no indication in the AUMF [Authorization to Use Military Force], the Detainee Treatment Act of 2005 … 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. …”

The meaning of this finding is even clearer in the Concurring Opinion which Judge Brown added to her own, majority decision. In that highly unusual concurrence with herself, she wrote: “War is a challenge to law, and the law must adjust. It must recognize that the old wine skins of international law, domestic criminal procedure or other prior frameworks are ill-suited to the bitter wine of this new warfare. We can no longer afford diffidence. This war has placed us not just at, but already past the leading edge of a new and frightening paradigm, one that demands new rules be written. Falling back on the comfort of prior practices supplies only illusory comfort.”

A staff attorney for the ACLU’s National Security Project complained that, “After eight years, the continued detention of prisoners without charge is an affront to the Constitution. Today’s court opinion is a setback to justice and the rule of law.” This statement ignores, probably deliberately, the fact that even international law allows fighters who are captured in a war to be held until the war is over, and that applies to soldiers who are in uniform, much less to terrorists in civilian clothes.

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