Court Rules Obama’s Detention Powers Not Limited by Laws of War

[Hissyspit]

Source: SCOTUS Blog

Court rules Obama’s detention powers not limited by laws of war

By Stephen C. Webster
Wednesday, January 6th, 2010 -- 12:35 am

The Washington, D.C. Circuit Court of Appeals issued a ruling Tuesday that upholds the Bush administration's broad claims of executive power to detain non-citizens.

The case, Al-Bihani v. Obama, "was the first by the Circuit Court to directly apply the Supreme Court’s 2008 decision in Boumediene v. Bush creating a constitutional right for Guantanamo Bay detainees to challenge their captivity," according to the SCOTUS blog. "Unless reviewed and overturned either by the en banc Circuit Court or the Supreme Court, the new decision will control how scores of detainee cases are resolved in District Court in Washington."

The defendant in the case, whose habeas petition was denied by the court, is Ghaleb Nassar Al Bihani, a citizen of Yemen who served Taliban fighters as a cook and claims he never even fired a shot.

"After all, as Napoleon himself was fond of pointing out, 'An army marches on its stomach,'" wrote U.S. District Judge Richard Leon in early 2009, in a ruling that allowed Al-Bihani's continued imprisonment.

Al-Bihani has been in Guantanamo Bay since 2002. While his habeas petition was filed in 2005, it languished until 2008, when the Supreme Court finally ruled on Boumediene v. Bush, determining that Guantanamo detainees should be allowed to challenge their detention.

Read more: http://rawstory.com/2009/01/court-ruling-finds-obamas-detention-powers-limited-laws-war

---

ORIGINAL LINK: http://www.scotusblog.com/wp/wide-detention-power-upheld

Wide detention power upheld
Circuit's first ruling post-Boumediene

Lyle Denniston | Tuesday, January 5th, 2010 12:13 pm

The D.C. Circuit Court, filling in some of the legal blanks left by the Supreme Court on the president’s power to detain terrorist suspects, on Tuesday upheld the broadest view the government has taken of that authority, and ruled that the power is not limited in any way by international law, including the law of war. Only domestic law controls whom the president may detain, and those home-grown legal concepts sweep widely, the appeals court ruled. Its decision — very likely to be challenged in further appeals – can be read here.

The ruling in Al-Bihani v. Obama (Circuit docket 09-5051) was the first by the Circuit Court to directly apply the Supreme Court’s 2008 decision in Boumediene v. Bush creating a constitutional right for Guantanamo Bay detainees to challenge their captivity. Unless reviewed and overturned either by the en banc Circuit Court or the Supreme Court, the new decision will control how scores of detainee cases are resolved in District Court in Washington.

The Circuit Court panel embraced the definition of detention power first spelled out by the Bush Administration (somewhat wider than the Obama Administration has advocated) and adopted by U.S. District Judge Richard J. Leon. Leon has been prepared to allow a wider scope for detention than most of his District Court colleagues; their views on the issue must now yield. Conceivably, the practical result may be that fewer detainees can now win court orders for their release. While the government has not appealed to the Circuit Court all of the prior release orders, it presumably has a free hand now to contest almost any such order.

Moreover, the government’s chances of defending detentions in court appeared to be enhanced by the new ruling, since the panel concluded that detainees captured on overseas battlefields do not have the full array of procedural rights that, say, a domestic criminal would have in a habeas case. “Requiring highly protective procedures at the tail end of the detention process for detainees like Al-Bihani would have systemic effects on the military’s entire approach to war,” the panel said.

[IndianaGreen]

1. Now that we have restored King George III to power...

Let's stop pretending that we are a constitutional federal republic.

[ShortnFiery]

72. Yes, this is only the continuation of BushCo's "American Crusade 2001 +"

When the balloon goes up (we get embroiled in a war against Iran), depend on OUR CHILDREN being sent within a universal draft to KILL and DIE for American Hegemony. :nuke:

[Hoopla Phil]

2. Court Rules Bush’s Detention Powers Not Limited by Laws of War

2nd verse, same as the first.

[grasswire]

3. this negates our criticisms of Bush-Cheney's attacks on the Constitution

Smart moves, Obamans.

It's very hard to believe that the WH has now opened Dems to attacks on Constitutional issues.

[Don Caballero]

4. I trust the President's judgement on this one

These powers were abused by Bush but President Obama is using them carefully and with good intentions.

[Hissyspit]

6. And the President after that? And the President after that one?

[Don Caballero]

8. As long as they do not abuse those powers like Bush did

I trust the President as a Constitutional expert to understand the legality of all situations.

[winyanstaz]

A constitutional expert knows damned well how wrong this is.

Even if detention forever with no trial is somehow written up to be "legal".....it still doesnt make it morally correct.
No more than slavery was correct.
No more than making women less than men was correct.
No more than making torture legal is correct...
But a true American would already know that.

[notesdev]

26. An expert like...

... Constitutional Law Professor Obama?

(Funny they don't mention that much these days, wonder why?)

[winyanstaz]

58. yup

[Freddie Stubbs]

35. Which constitutional expert?

Apparently not the judge who ruled in this case.

[winyanstaz]

18. A constitutional expert knows damned well how wrong this is.

Even if detention forever with no trial is somehow written up to be "legal".....it still doesnt make it morally correct.
No more than slavery was correct.
No more than making women less than men was correct.
No more than making torture legal is correct...
But a true American would already know that.

[Wilms]

45. I submit in blind trust, too.

[Don Caballero]

57. Who are you comparing to Nazis?

I find that quite offensive as I have Jewish friends and colleagues.

[JAbuchan08]

59. Maybe he's comparing people with authoritarian impulses to Nazis?

It may be a mite hyperbolic, but not by much. If we tread down that path that's where we likely end up, and the point is valid. Having Jewish friends does not and will not inure one to authoritarian tendencies, hell BEING Jewish won't do it.

As long as we rest on our laurels and reassure ourselves that "we're not that bad yet" we practically insure that we go down that path.

[Wilms]

66. That's exactly what I was doing.

And someone claims that they are offended by it. :cry: And then pulls a race card. :cry: :cry:

Transparent.

[Ignis]

61. Bingo.

It's not the guy currently holding office that we need to worry about.

[JDPriestly]

12. Carefully and with good intentions.

There is no such thing as carefully and with good intentions abusing basic human rights.

The rights belong to the person being deprived of them. It's up to that person to determine whether the rights have been abused carefully and with good intentions.

But, I don't know enough about the facts of the case or the ruling to know why the court decided as it did other than that the D.C. Circuit is extremely pro-Bush-pro-conservative.

[Iowa]

14. Oh God... (buries head in hands). This country is so screwed.

[katkat]

15. trust?

Yeah, who needs those pesky guaranteed rights.

[notesdev]

25. I hope that was tongue in cheek

If not I would have you understand that powers like that, the only careful and good intention is to abolish it.

Either we have rights or we have them not. If the government may in any circumstance deny them without due process of law, then we have them not.

If we no longer have rights because some "terrorists" are attacking us... one must ask: who is winning the war?

[dgibby]

50. Trust me. It wasn't.

That one's a true believer.

[Jazzgirl]

54. On steroids.

:puke:

[ima_sinnic]

27. right. lawlessness and abuse of power is okay as long as we "trust" the one in power

unbelievable! sheesh.

[bowens43]

28. this is sarcasm, right?

Every day we see that on the issues that really matter there is virtually no difference between the current president and his predecessor.

[No Elephants]

30. On this one? Have you ever not trusted Pres. Obama's judgment?

[Hell Hath No Fury]

49. Nope.

Never. ;)

[No Elephants]

31. Deleted duplicate post.

[pattmarty]

39. Yeah, right.

[BakedAtAMileHigh]

47. are you f**king serious?

Jesus H. Monkeyspanking Christ, people! You roll over so fast it is pathetic. Sycophantic lapdogs willing to give away their freedoms to a charismatic leader they believe will do the "right thing". You sicken me.

[FiveGoodMen]

60. Very well put!

For some on this site, "It's not fascism when we do it!"

[bitchkitty]

53. Oh, well then.

We should all be grateful, huh?

[mbperrin]

56. Carefully and with good intentions?

Any actual evidence to go with that?

What's wrong with an actual trial? Not quite Henry VIII enough?

[slipslidingaway]

63. LOL - "Support for our President should be our number one priority..."

still getting over this statement from yesterday.

[Zenlitened]

67. Yep, a laugh riot, huh?

Disney animatron? Borg drone? Random talking point generator?

:shrug:

[slipslidingaway]

76. I'll go with the Borg drone :) n/t

[ShortnFiery]

74. WTF Over ? ! ?

You'd let some "cult of personality" end our beloved Democratic Republic?

IMO, That's borderline TREASONOUS! :grr:

http://www.youtube.com/watch?v=pbgEwcwLaG4

[elleng]

5. 'Mr. Bihani argued

that his continued detention violated international law because he was not part of the military of a nation at war, and had not committed “a direct hostile act” like firing his weapon. His petition for release, he said, should have been reviewed under standards like those for criminal defendants in the United States.

But the court found that granting such a high level of protection to the rights of detainees like Mr. Bihani would affect the military’s entire approach to war.

“From the moment a shot is fired, to battlefield capture, up to a detainee’s day in court, military operations would be compromised as the government strove to satisfy evidentiary standards in anticipation of habeas litigation,” the opinion said.

A lawyer for Mr. Bihani did not return calls seeking comment. A Department of Justice spokesman also declined to comment.

Eric M. Freedman, a law professor at Hofstra University and an expert in habeas cases, said the appeals court had “gone out of its way to poke a stick in the eye of the Supreme Court” by taking a view that expands government power beyond the limits laid out in decisions like Boumediene.

The 25-page opinion was written by Judge Janice Rogers Brown and joined by Judge Brett M. Kavanaugh, both appointees of President George W. Bush. Both are considered among the most conservative judges on the circuit.

The third member of the panel, who joined in denying Mr. Bihani’s petition but not in the complete reasoning of the decision, was Judge Stephen F. Williams., a senior judge who was appointed by President Ronald Reagan. In a concurring opinion, Judge Williams, wrote that the majority’s argument that the president’s war powers are not bound by the international laws of war actually “goes well beyond even what the government has argued in this case.”

In a separate concurrence, Judge Brown wrote that the war placed the nation “past the leading edge of a new and frightening paradigm, one that demands new rules be written.”

She wrote, “War is a challenge to law, and the law must adjust.”'

http://www.nytimes.com/2010/01/06/us/06detain.html?hpw

---------------------------------------

Lets see what the entire Court of Appeals has to say, when an appeal of this decision is filed and the entire court can hear it, en banc.

[merh]

9. I like this comment in the article you quote

Eric M. Freedman, a law professor at Hofstra University and an expert in habeas cases, said the appeals court had “gone out of its way to poke a stick in the eye of the Supreme Court” by taking a view that expands government power beyond the limits laid out in decisions like Boumediene.

SCOTUS doesn't like it when judges poke sticks in their eyes.

[elleng]

10. Right. Thats why I suggested the entire court might differ.

[elleng]

13. About Judge Brown, who wrote the decision:

http://en.wikipedia.org/wiki/Janice_Rogers_Brown

[No Elephants]

36. Thanks. She was ruled "not qualified" for the California Supreme Court, yet she

sits on the U.S. Circuit Court of Appeals, within spitting distance of the SCOTUS, literally and figuratively.

"In May 1996, Governor Pete Wilson appointed Brown as Associate Justice to the California Supreme Court. Prior to the appointment, she had been rated "not qualified" by the State Bar of California's Commission on Judicial Nominees Evaluation, which evaluates nominees to the California courts. She was the first person with that rating to be appointed."


Grrrrrrr.

[treestar]

70. Sounds like conservatives

Very Bushy sounding to me.

[Solly Mack]

7. k/r & ACLU response

The following can be attributed to Jonathan Hafetz, staff attorney with the ACLU National Security Project:

“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. The unnecessary endorsement of excessive military detention power and the suggestion that America is free to defy international law flouts all precedent and, if actually adopted, would jeopardize America's security as well as its values.”

http://www.commondreams.org/newswire/2010/01/05-9

[elleng]

11. Here's the entire decision.

http://www.nytimes.com/2010/01/06/us/06detain.html?hpw

[No Elephants]

38. Please donate to the ACLU. Please see Reply # 33 for the link.

A donation to Amnesty International would be on point, too.

[ima_sinnic]

16. absolutely disgusting and appalling. the phony "constitutional scholar" can

go to fucking hell.

his first big lie was that he was going to work to have habeas corpus reinstated, STAT.

he "hasn't had time" to do much besides working to ensure that habeas corpus is kicked into the gutter, along with "transparency" and "change."

I notice the coward never says anything about this in his eloquent speeches (but even if he did, I wouldn't hear it, because I regard his speeches the same way I did Bush's and the same way I would those of any snake-oil salesman spewing phony bullshit. Instant channel change, if I had a TV.) C'mon, Obama, tell us why we should be happy that you've set yourself up as DICKtator--or do you think of yourself more as a king? MLK Jr would be proud of you, eh?

[buckrogers1965]

17. This sickens me to the core.

The constitution is very clear. All people have certain inalienable rights.

Not citizens.

People.

If we allow even one person to not have rights under the constitution, then nobody has rights under the constitution.

If you oppose them in this matter, then it will be found that you are materially aiding the enemy and you will be in the prison cell right next to the terrorists. Without trial.

Giving the power of indefinite detention to the President makes him king. It doesn't matter that the current king is benevolent. The one after that will make up for it.

[No Elephants]

32. The Constitution does use terms like "person," but the Constitution says

nothing about inalienable rights. That is in the Declaration of Independence, which document does not have the force of law.

[Goldstein1984]

19. We are not the nation that we pretend to be

Even the idea that we would hand over our unalienable rights in the belief that politicians can be trusted to treat us fairly should be alien to any American.

I hope that when I travel in other developed nations I enjoy the full protection of their laws.

[laughingliberal]

20. Hey, more change! Maybe not. nt

[treestar]

71. The Judiciary is a separate branch

Perhaps you had problems with recognizing Congress as one, too?

Having a Democratic President appoint court justices is reason alone to have a Dem president. Others on the thread identified the justices on the DC Circuit as Bush appointees.

This case will go to the SCOTUS and it has at least one Obama appointee already.

[reggie the dog]

21. cool, we can all be dissapeared like in the dirty wars

no trial, no lawyer, no phone call, just a kicked down door, a bag over the head, and a nightime van ride to an undisclosed location......the worst part is he can have this done to me or you, and I dont even live in the USA, and such an arrest is against the law and I think against the constitution here in France...... so now a court has said obama is king of the world ......this is bullshit, obama was a professor of constitutional law, how is this constitutional??? how can he have the right to do this in the European Union when it is against our charter of rights and freedoms?

[dgibby]

52. Evidently,

being a Constitutional scholar doesn't equate with actually believing in the Constitution.:mad:

[FiveGoodMen]

62. Maybe he studied the Constitution so that he'd know how to destroy it

[aquart]

22. Worst ruling of the decade.

[RUMMYisFROSTED]

43. I'd have to agree....six days into the decade.

:)

[dipsydoodle]

23. By implication

it justifies the detention, announced or unannounced, of American forces or citizens by foreign powers or spurious forces within those countries aka kidnap.

I must say I'm surprised. Is this change you can believe in. :sarcasm:

[ima_sinnic]

24. K&R--let as many as possible see who the "change" president really is

apparently there is no need to vote against repukes anymore. I will be voting third-party or writing in Dean or Kucinich. Our president is a fake, a fucking trojan horse who is being well rewarded for his chicanery and collusion with war criminals, now endowed with the power of a king to decide other human beings' fate (anywhere in the world) on a whim. This also ensures that those he's protecting, the torturers and war criminals and traitors, will never be prosecuted for anything.

[madrchsod]

29. nothing much has changed but the name on the door.....

[No Elephants]

33. Please donate to the ACLU, which recently lost its biggest donor, just when we seem to need it

most. Representing our rights in cases like this costs a lot of money.

http://action.aclu.org/site/PageServer?pagename=FJ_donationhome

This case is the Bush legacy, both of overreaching by the Executive, especially in matters of terra, and Republican judicial appointees. I am so sorry to see a politician I supported to the fullest extent of my physical and financial ability has picked up so much of Dummya's mantle, as well as refusing to prosecute him.

Only heaven knows how the Roberts Court will rule.


On edit: Another worthy organization in this context is Amnesty International.


I am proud to support both the ACLU and Amnesty International.

[no_hypocrisy]

34. All that's left to do is to make a process to remove citizenship for this purpose.

Geez.

[Dr.Phool]

37. Welcome to the Fascist States of Amerika.

More change we can make believe in.

[lonestarnot]

40. Damn. More of this unitary executive crap.

[Jefferson23]

41. Sounds like the ACLU will need more donations, as they will have their

work cut out for them for a long time.

"Unless reviewed and overturned either by the en banc Circuit Court or the Supreme Court, the new decision will control how scores of detainee cases are resolved in District Court in Washington."

This is disgusting.

[Odin2005]

42. K&R

[Roland99]

44. Uhhh...our courts are now quoting Napoleon to justify their decisions?!?!?!?!

:wtf:

[Javaman]

46. that would be correct only if congress declared war...

but alas they didn't and the courts choose to further shred the constitution.

But hey, what about that crazy tiger woods, huh?

I no longer weep for our future, there is plenty to weep for in the here and now.

[Selatius]

48. If Congress declared war, the detainees would automatically be protected by the Geneva Conventions.

The detainees would have to be treated in line with any other prisoner of war. As it stands, no war has been formally declared. This creates a legal gray area that the Bush Administration and now apparently the Obama Administration is now exploiting for the benefit of expanding executive power.

[meow2u3]

51. Now Obama can round up the neo-Nazis and detain them

:evilgrin:

[mbperrin]

55. So happy to have courts quoting Napoleon! He's such a humanist!

Wait...

[slipslidingaway]

64. knr nt

[JoeyT]

65. Well, on the positive side

this is technically historic too.
It won't be remembered as a good thing, because it isn't, but it's definitely historic.

[JelloSka]

68. These were very conservative judges that reached this decision. It will be appealed

It will go to the Supreme Court or the Appeals court.

[ShortnFiery]

73. Lovely, our Supremes are as DoublePlusConservative as they were under BushCo.

[treestar]

69. This is the court's decision

Al-Bihani’s detention is authorized by statute and there
was no constitutional defect in the district court’s habeas
procedure that would have affected the outcome of the
proceeding. For these reasons, the order of the district court
denying Al-Bihani’s petition for a writ of habeas corpus is
Affirmed

http://www.scotusblog.com/wp/wp-content/uploads/2010/01/CADC-ruling-in-Bihani-1-5-10.pdf

Read before bloviating. It involves two acts of Congress and a prior SCOTUS decision.

[ShortnFiery]

75. I'm NOT hopeful because a similarly conservative SCOTUS installed "George Bush" as POTUS. eom

[Demeter]

77. Same Shit, Different Day

What's it gonna take to re-establish the rule of law around here? Another revolution?

[fascisthunter]

78. disgusting