Correspondence on Hedges

An attorney who was deeply involved in the Al Bihani litigation sent me the following note about my post on the Hedges decision:

I've no doubt you'll be inundated with correspondence regarding Judge Forrest's Hedges opinion from scholars and practitioners far more qualified than I. But for the simple reason that I lived the Al Bihani drama as it was playing out in the D.C. Circuit, I feel compelled to note one additional error---I was going to say "oddity," but that's too soft a word---in the Hedges analysis.

The court writes: “Specifically, in Al-Bihani, the Circuit Court for the District of Columbia rejected an argument, made by the Government in opposing another Guantanamo habeas petition, that the laws of war were incorporated into the President’s detention authority. See Al-Bihani, 590 F.3d at 871.”

This is wrong on so many levels that, weirdly, it almost turns out to be accidentally right.
As you'll recall, what happened in Al Bihani was that all the litigants agreed that the international laws of war did "inform," and thus effectively limit, the scope of the detention authority in the AUMF. The majority opinion by Judge Brown, joined by Judge Kavanaugh, embraced a position more radical than either side had advocated; as Judge Williams noted in his separate opinion, "the majority's dictum [rejecting the relevance of the law of war] goes well beyond what even the government has argued in this case. See Appellees' Unclassified Br. at 23 ('The authority conferred by the AUMF is informed by the laws of war.')." 590 F.3d at 885. Thus when the full court subsequently dicta-ized the Brown/Kavanaugh pronouncement on the laws of war, it was rejecting a vision that was the sua sponte creation of two D.C. Circuit judges, not an argument that the government had put forward.

Hedges is, obviously, so riddled with basic mistakes that the one I've identified here may not make the top ten. But to my mind, it's important both historically and politically that the Obama administration was not the impetus for the bizarre law-of-war fiasco in Al Bihani; that responsibility was the D.C. Circuit's, alone.