discussing potential “serious consequences, such as subjecting the United States to sanctions, undermining U.S. standing in the world community, or encouraging retaliation against U.S. person-, nel abroad” should political branches “ignore or disregard international-law norms” but nonetheless maintaining that “in our constitutional system of separated powers, it is for Congress and the President — not the courts — to determine in the first instance whether and how the United States will meet its international obligations”
How later courts described this case
- discussing potential “serious consequences, such as subjecting the United States to sanctions, undermining U.S. standing in the world community, or encouraging retaliation against U.S. person-, nel abroad” should political branches “ignore or disregard international-law norms” but nonetheless maintaining that “in our constitutional system of separated powers, it is for Congress and the President — not the courts — to determine in the first instance whether and how the United States will meet its international obligations”
- emphasizing that “[a]pplying” certain legal rules “to particular factual situations” in the foreign affairs and national security contexts involves a great deal “of subjective judgment”
- characterizing the “notion, common in the early years of the Nation ... that international law was part of the general common law that federal courts could apply” as “now discredited”
- finding “no persuasive evidence” to show “Congress would want a court to alter its interpretation of a statute based on a non-self-executing treaty”
Written by the judges who cited it.
The opinion
SENTELLE, Chief Judge, and GINSBURG, HENDERSON, ROGERS, TATEL, GARLAND, and GRIFFITH, Circuit Judges,
concurring in the denial of rehearing en banc:
We decline to en banc this case to determine the role of international law-of-war principles in interpreting the AUMF 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. See Al-Bihani v. Obama, 590 F.3d 866, 871, 873-74 (D.C.Cir.2010) (panel opinion); id. at 883-85 (Williams, J., concurring in the judgment); Al-Bihani v. Obama, No. 09-5051, slip op. at 1 (D.C.Cir. Aug. 31, 2010) (Kavanaugh, J., concurring in the denial of rehearing en banc); see also Gov’t’s Resp. to Pet. for Reh’g and Reh’g En Banc at 1-2 (stating that the dispute over the role of the law of war does not “change[ ] the outcome”).