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Nearly a decade ago, the D.C. Circuit’s decision in Al-Bihani v. Obama made a forceful case against the use of international law-of-war principles to interpret the 2001 Authorization for the Use of Military Force (AUMF). This decision was reached despite a plurality of the Supreme Court suggesting a contrary approach in Hamdi v. Rumsfeld. Although the D.C. Circuit walked back the Al-Bihani court’s holding en banc, two recent decisions have revived Al-Bihani’s reasoning, strongly suggesting that international law has no relevance in AUMF-interpretation. This position has particularly strong ramifications for determining the end of the decades-long war it authorized. While U.S. law on conflict termination is decidedly rigid and formalistic, international law principles would provide a more nuanced and fact-based legal approach to the end of war—a framework all-but-foreclosed by Al-Bihani and its progeny.
This Note aims to update the analysis of this issue by addressing the progression from Hamdi, through Al-Bihani, to the recent cases of Al-Alwi v. Trump and Al Hela v. Trump, and by examining the way in which Judge Neomi Rao of the D.C. Circuit Court of Appeals crafted her opinion in Al Hela to quietly promote a viewpoint that is hostile to international law’s applicability. This Note also examines ramifications of the Al Hela decision on determining the end of the ‘Forever War,’ as well as proposals for the political branches to rethink and address the end of the current conflict. Finally, this Note proposes the adoption of an international law-based conception of the end of war.
