Detainee Petitions Supreme Court for Application of International Laws of Armed Conflict
by Stephen C. Lessard, Esq.
Two remaining Guantánamo Bay detainee cases provide an opportunity for the Supreme Court to review the way lower courts have implemented its constitutional declarations in its 2008 decision, Boumediene v. Bush, on the legal rights of detainees at Guantánamo and the role of the judiciary as a check on Executive power. One of those cases, Al-Bihani v. Obama, was filed May 16, 2011 and seeks to test the scope of the Executive's detention power. Specifically, Al-Bihani argues that the international laws of armed conflict apply to determine the scope of who may be detained under the 2001 Authorization for Use of Military Force ("AUMF") enacted by Congress.
Both President George W. Bush and President Barack Obama have claimed authority under the AUMF to indefinitely detain persons illegally carrying out attacks on the United States and that such persons are not protected as prisoners of war under the Geneva Conventions. The AUMF provides that the President is authorized to use all necessary and appropriate force against those persons or organizations he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such persons or organizations.
Al-Bihani's petition asks the Supreme Court to reverse the D.C. Circuit Court of Appeals and rule that the President's detention power applies only to individuals who actually engaged in armed action against the United States and not to an individual simply because he had some ties to a terrorist organization. The D.C. Circuit, in ruling that simply being a part of a terrorist network is enough to justify detention, stated that relying on the international laws of war to determine the scope of the President's detention power is "inapposite and inadvisable." That ruling is from a case involving al-Bihani's brother, who was part of a fighting force and carried a weapon.
Al-Bihani claims he was a civilian who was not part of a hostile fighting force; he was merely a cook for the Taliban who never carried a weapon and was captured in Iran. Al-Bihani argues that under the international laws of armed conflict, he is a civilian because he has not given up the protections of that status by direct and active participation in hostilities. Al-Bihani cites to the 1949 Second Additional Protocol to the Geneva Conventions, which provides that civilians shall not be the object of attack unless and for such time as they take a direct part in hostilities. Al-Bihani acknowledges that senior terrorist leaders, by virtue of their leadership positions, should always be considered to be taking a direct part in hostilities or the planning of combat operations and, therefore, are always combatants.
Al-Bihani's petition argues that the D.C. Circuit's standard allows for the indefinite detention of an individual based solely on his being part of' a terrorist group, without regard to whether the individual in question ever personally engaged in hostilities against the United States. Al-Bihani contends that the AUMF does not support the presidential claim of authority for indefinite detention but, rather, the President can only legitimately justify detention by reference to the international laws of armed conflict.
However, Al-Bihani makes no mention of U.S. law that makes it a crime merely to act in support of terrorist organizations. He also fails to distinguish the traditional notion of an international armed conflict (hostilities between two or more countries) and what has come to be viewed by some commentators as a non-international armed conflict (hostilities between a country and a non-country). In the case of a non-international armed conflict, some argue that the international laws of armed conflict are not applicable.
Al-Bihani probably will not be ready until the Supreme Court's next term. The U.S. Justice Department has been asked to respond to the petition by June 10.
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