Legal Commentary

113 Pages Deciding Nothing?

By Jonathan H. Adler

This morning the U.S. Court of Appeals for the D.C. Circuit denied the petition for rehearing en banc in Al-Bihani v. Obama ? only it did so with a two-page order and 111 additional pages of ?statements? respecting the denial.  The vote was unanimous, but there appears to be a fair amount of disagreement within the Circuit over the original panel?s discussion of the relevance of international law-of-war principles to the scope of the military?s detention authority.

As Steve Vladeck notes at Balkinization, all of the active judges on the court who were not on the original panel joined a statement stating that this question was not necessary to resolve the merits of the case.   He finds this ?dicta-ization? of the original panel?s reasoning to be a de facto grant of rehearing, even though the court suggests otherwise.  He concludes: ?Whatever the merits of the decision in Al-Bihani?s case, specifically, its significance in other cases has been unquestionably lessened (along with any chance that the Supreme Court would feel the need to step in).?

UPDATE: Lyle Denniston has more here.

Full post as published by The Volokh Conspiracy on August 31, 2010 (boomark / email).