September 1, 2010 | The Weekly Standard

Transnational Absurdity

When Ghaleb Nassar al Bihani traveled to Afghanistan to fight alongside al Qaeda and the Taliban, he probably never imagined that he would be captured and his detention would be turned into a legal fight over what role, if any, international law plays in restricting the president of the United States’s wartime powers.

Amazingly, that is precisely what happened.

A federal appeals court in Washington yesterday denied a request from al Bihani’s attorneys to rehear the Gitmo detainee’s case. In January 2009, a D.C. district judge denied al Bihani’s petition for a writ of habeas corpus. Al Bihani’s attorneys appealed, but a D.C. Circuit Court panel of three judges upheld the district judge’s ruling.

Al Bihani’s attorneys appealed again, requesting that the full court hear the case. But in Tuesday’s ruling, the U.S. Court of Appeals for the D.C. Circuit declined “to en banc this case to determine the role of international law-of-war principles in interpreting the AUMF [the 2001 Authorization for use of Military Force] because, as the various opinions issued in the case indicate, the panel’s discussion of that question is not necessary to the disposition of the merits.”

That is, the judges believe it has nothing to do with whether or not Ghaleb Nassar al Bihani is properly detained at Gitmo.

What really happened here is that al Bihani’s lawyers tried to use his detention as a means to litigate their pet legal theories. This has nothing to do with determining whether detainees are properly held, let alone fighting al Qaeda or winning a war. Instead, it was part of a push to obtain more power for the courts to interfere in the other branches of government’s conduct of the war.

The transnational legal community wants the courts to have the power to reject acts of Congress and military decisions made by the executive branch based on international law, which may or may not have anything to do with the will of the American people as expressed at the ballot box.

As Judge Janice Rogers Brown wrote on Tuesday, this isn’t a good idea. Under the U.S. Constitution, the president “retains the leeway to implement his authority as broadly or narrowly as he believes appropriate—consistent with international law or not—and the legislature, in turn, may add whatever limits or constraints it deems wise as the war progresses,” Judge Brown wrote. “This ensures that wartime decisions will be informed by the expertise of the political branches, stated in a clear fashion, and that the decision makers will be accountable to the electorate.”

If al Bihani’s lawyers’ vision is enacted, however, a Pandora’s box of problems would be opened. Judge Brown writes:

    Such an approach would place ultimate control of the war in the one branch insulated from both the battlefield and the ballot box. That would add further illegitimacy to the unpredictable and ad hoc rules judges would draw from the primordial stew of treaties, state practice, tribunal decisions, scholarly opinion, and foreign law that swirls beyond our borders.

Other judges denied al Bihani’s request because it had nothing to do with the merits of the case, but they seemed to leave the door open for the possibility that international law will one day trump America’s national security agenda as set forth by the president and Congress. Thus, Judge Brown contributed a scathing critique of her fellow judges’ opinions, using words such as “grotesque” to describe their opinions. And one judge, Judge Brown writes, “contributes a separate opinion that conceives of a brave new role for judges in wartime: that of supervisors of the battlefield.”

The Obama administration did not fight the transnational argument. Instead, the administration embraced it, arguing only that it was owed “substantial deference” in this instance.

“The government responds ambivalently, adopting the questionable strategy of conceding Al-Bihani’s point, but nonetheless urging denial of rehearing,” Judge Brown writes. Elsewhere, Brown says the Obama administration’s lawyers made an “eager concession that international law does in fact limit the AUMF.”

This demonstrates the degree to which the Obama administration is committed to some very radical notions of the law. The AUMF was Congress’s response to the most devastating terrorist attack in history, and rightly gave the presidency substantial power to hunt down the al Qaeda terror network. But the administration believes that even the AUMF is subject to an amorphous body of international law and standards and should be interpreted through that transnational prism.

All of this goes to a more central point. Legal gamesmanship long ago trumped national security concerns when it comes to litigating the cases of Guantanamo detainees. This entire argument is taking place in the context of the U.S. government’s proper detention of a known al Qaeda operative.

Some press accounts have called Ghaleb Nassar al Bihani a mere cook for al Qaeda. That is his lawyers’ spin. Al Bihani was much more than that. He comes from a family of al Qaeda terrorists. Several of his brothers served Osama bin Laden in various capacities. Al Bihani received extensive terrorist training in Afghanistan, and became a member of al Qaeda’s elite Arab 055 brigade, which fought alongside the Taliban. He served al Qaeda right up until the time of his capture.

Despite this and more, al Bihani’s lawyers thought that international law should free al Bihani from Gitmo. Their arguments are a good illustration of why the transnational legal framework is fraught with danger.

Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.

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