The Relevance of International Law to (the Substantive and Procedural Rules of) Preventive Detention in Armed Conflict – A Rejoinder to Al-Bihani

[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He currently teaches International Law and Constitutional and Military Law. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy.]

The post-Boumediene habeas litigation has raised concerns regarding whether the courts are equipped to determine the substantive and procedural rules governing preventive detention pursuant to the Authorization for the Use of Military Force of 18 September 2001 (AUMF). Before the January 5th D.C. Circuit panel opinion in Al-Bihani v. Obama, no court had questioned the relevance of international laws governing war to the issue.

I believe that the courts are certainly competent to determine these issues so long as they observe applicable international law in construing the AUMF. The panel opinion’s suggestion that international law is irrelevant to the preventive detention inquiry ignores over 200 years of precedent in this area.

Contrary to the general approach taken by the district courts, the al-Bihani panel concluded:

[A]ll of [al-Bihani’s claims] rely heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the internationallaws of war. This premise is mistaken. There is no indication in the AUMF, the Detainee Treatment Act of 2005…, or the MCA of 2006 or 2009, that Congress intended the internationallaws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF. Mem. Op. at 7.

Concurring with the panel opinion, Judge Brown said:

The Supreme Court in Boumediene and Hamdi charged this court and others with the unprecedented task of developing rules to review the propriety of military actions during a time of war, relying on common law tools. We are fortunate this case does not require us to demarcate the law’s full substantive and procedural dimensions. But as other more difficult cases arise, it is important to ask whether a court-driven process is best suited to protecting both the rights of petitioners and the safety of our nation. Concur. Op. at 1.

Another D.C. district court judge is reported to have expressed similar concerns from the bench regarding the conduct of the courts and the need for congressional action:

“It is unfortunate that the legislative branch of our government and the executive branch have not moved more strongly to provide uniform, clear rules and laws for handling these cases.” He noted that his fellow judges hearing detainee cases essentially created “different rules and procedures … different rules of evidence … [and] substantive law.

Interestingly, this “unprecedented task” is not unprecedented at all. Early in U.S. history, federal courts determined the rights of individuals against the U.S. government in prize cases and faced precisely these problems. Prize cases involved the capture and condemnation of the ships and commercial cargo of enemy nationals (and also of U.S. nationals engaging in commerce with them) in congressionally designated general or limited (a.k.a. “partial”, or “quasi”) wars. While prize captures are no longer permitted by international law, its case law is instructive to preventive detention questions.

Similar to Boumediene but much earlier in our nation’s history, the Supreme Court somewhat (but less) controversially found that the constitutional and statutory grants of admiralty jurisdiction conferred jurisdiction over prize cases on the federal courts. In The Amiable Nancy, 16 U.S. 546, 557-58 (1818) the Court stated that “[t]he jurisdiction of the district court to entertain this suit, by virtue of its general admiralty and maritime jurisdiction, and independent of the special provisions of the prize act of the 26th of June 1812…has been so repeatedly decided by this court, that it cannot be permitted again to be judicially brought into doubt.” With frequent conflict between our fledgling country and both England and France, the federal courts became deeply involved in this then-significant aspect of armed conflict.

Identifying the ships or property of enemy nationals on the high seas was often difficult. Ships would cloak their affiliation and throw log books and other evidence overboard when approached. Crew members were frequently unavailable to the courts or lacked specific knowledge.

The federal courts were uncertain what substantive and procedural rules to use in this unique legal environment. Writing for the Court in The Schooner Adeline, 13 U.S. 244, 284 (1815)(emphasis added), Justice Story attempted to assist them by clarifying that:

“No proceedings can be more unlike than those in the Courts of common law and in the admiralty. In prize causes, in an especial manner, the allegations, the proofs and the proceedings are, in general, modelled [sic] upon the civil law, with such additions and alterations as the practice of nations and the rights of belligerents and neutrals unavoidably impose. The Court of prize is emphatically a Court of the law of nations; and it takes neither its character nor its rules from the mere municipal regulations of any country.”

Just two years later, the Supreme Court added an appendix to a very cursory opinion in The London Packet, 15 U.S. 371 (1817) (appendix), which began:

I[n] the Appendix to the first volume of these Reports… a summary sketch was attempted of the practice in prize causes in some of its most important particulars. It has been suggested that a more enlarged view of the principles and practice of prize courts might be useful, and in case of a future war, save much embarrassment to captors and claimants. With this view the following additional sketch is submitted to the learned reader.

The Court then provided, in what might be viewed as in part an advisory opinion on the law and in part a promulgation of rules of procedure, to deliver a heavily referenced mini-treatise (32 Lexis© download pages!) of the internationalrules governing prize practice, including substantive rules, evidentiary standards and modes of proof.

The panel opinion in al-Bihani both embraces and ignores this tradition. The above discussed and related precedent lends support to the Supreme Court’s belief, expressed in both Hamdi and Boumediene, that the procedures to be used in preventive detention habeas cases related to armed conflict need not be the same as would govern domestic habeas litigation. This view was heartily embraced by the al-Bihani panel. Mem. Op. at 14-25.

With that said, the panel also ignores this history by suggesting that international laws regulating war are irrelevant to its inquiry into which individuals are subject to indefinite detention. The Supreme Court has consistently stated precisely the opposite of this view. In Talbot v. Seeman, 5 U.S. 1, 28 (1801), Chief Justice Marshall stated 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.” (emphasis added) Just three years later in Murray v. The Schooner Charming Betsy, 6 U.S. 64, 118 (1804), when finding – against the determination of a U.S. naval commander – that a certain vessel and its cargo were not subject to condemnation as prize, Justice Marshall again clarified that “that an act of Congress [in this case, the authority to engage in limited hostilities/armed conflict against France] ought never to be construed to violate the law of nations if any other possible construction remains….”

Nearly 100 years later in the prize case of The Paquete Habana, 175 U.S. 677, 700 (1900), the Supreme Court reaffirmed the notion that “where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations….” (emphasis added) And in United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 318 (1936) the Supreme Court noted that “operations of the nation in …[foreign] territory must be governed by treaties, international understandings and compacts, and the principles of international law.”

As I note in a draft article, now posted on SSRN (comments on this still very rough-in-spots draft are welcome), the Supreme Court has consistently “implied from …[congressional authorization to engage in general or limited armed conflict] a scope of authority consistent with the congressional act and any relevant international law. Indeed, the application of Charming Betsy to a congressional declaration of war or other AUMF necessarily yields this result.”

My research reveals that this same approach also permeates Supreme Court precedent and U.S. practice withregard to laws of war on land both extraterritorially and, to a less certain extent, territorially. What is clear in this long line of precedent is that the Court does not always “make” domestic federal common law from international law, it applies or observes existing international law in appropriate cases in the absence of an applicable domestic law or other controlling public act of the government. In other words, as Paquete Habana, 175 U.S. at 700, attempted to make clear, international law “must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.”

Additionally, customary international laws governing war were not applied “by analogy” in non-international armed conflict. The U.S. view was that they also governed the U.S. Civil War and other non-international armed conflicts, a view gradually taking hold in the international community after the ICTY appellate decision in Prosecutor v. Tadic. In Winthrop’s treatise, though, there is a clear implication that U.S. practice also established a domestic common law of war in purely internal armed conflicts.

No doubt, the panel opinion’s authors align with those who believe that Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) requires state law to govern cases in federal courts “[e]xcept in matters governed by the Federal Constitution or by acts of Congress” – taking this to mean that international law may never provide a rule of decision in a federal court unless implemented by the states or federal political branches. After extensive research into this understanding of Erie, it is clear that both pre- and post-Erie Supreme Court precedent contradicts such claims with regard to international laws governing armed conflict. (I will present this and its theoretical basis in forthcoming scholarship.)

It is equally clear from above-cited cases and related precedent (as the al-Bihani opinion noted) that Congress may establish national policy that violates international law. If that happens, this federal law must be applied by U.S. courts. However, Charming Betsy-related precedent also requires the courts to determine either that Congress’s intent to do so is expressly stated, or that such intent can be clearly implied from enacting a law irreconcilable with applicable international law. See e.g.Dehn, Why Article 5 Status Determinations are not ‘Required’ at Guantánamo, 6 J. INT’L CRIM. JUST. 371 (2008)(discussing related precedent and its effect on the Military Commissions Act of 2006 when compared to Articles 4 & 5 of the Geneva Convention Relative to the Treatment of Prisoners of War).

The al-Bihani opinion completely reverses this longstanding approach. Effectively overturning the Charming Betsy as if it were the fictitious Poseidon cruise ship, it requires a finding of congressional intent to comply with international laws governing armed conflict before the court will look to them when interpreting the AUMF and related statutes. One hopes an en banc rehearing will right the ship, sparing the district courts from being forced to reorient to this topsy-turvy legal environment and claw their way to daylight.

Whether one views Charming Betsy as a canon of statutory construction or as a conflict of laws decision, international law is clearly relevant to interpreting the scope of preventive detention authority granted by the AUMF. It is relevant both to the general nature of war powers exercised and to any particular limits on those powers. It is unlikely that the Supreme Court would issue another mini-treatise appendix to an opinion outlining the rules, though the precedent for doing so exists. Thus, the courts must continue their difficult but not insurmountable task by determining and observing the content of relevant international law in preventive detention habeas proceedings.

Congressional action is of only limited value here. More precisely, a “preventive detention act” would not relieve the courts of their Charming Betsy requirement to look to relevant international law when interpreting both the AUMF and any new law(s) expressly outlining executive detention authority in this or any other armed conflict.