Tuesday, January 5, 2010
The D.C. Circuit today affirmed the district court's denial of Ghaleb Nassar Al-Bihani's habeas petition. Al-Bihani is a Yemeni citizen detained at Guantanamo Bay since 2002 as a member of the 55th Arab Brigade, a paramilitary group allied with the Taliban and including Al Qaeda members in its command structure.
Al-Bihani contested his detention on both substantive and procedural grounds. On the substance, he claimed that, as a contractor and a cook for the 55th, he did not "support" or "substantially support" Al Qaeda or the Taliban. He claimed that international law did not authorize his detention, because he did not belong to an official state military or commit direct hostile acts. He argued that the 55th did not have the required opportunity to declare its neutrality, and therefore under international law of co-belligerency he was not detainable. Finally, he argued that he was not detainable, because the war between the United States and Taliban-controlled Afghanistan ended.
The district court ruled that Al-Bihani was detainable as "an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners" or an individual who "substantially support[ed]" enemy forces." (Recall that the Obama administration changed--but just slightly--the definition of detainable individual, adding the "substantial" qualifier.) Al-Bihani provided the evidence himself. According to the D.C. Circuit:
Al-Bihani's evidence . . . establish[ed] that the 55th "supported the Taliban against the Northern Alliance," a coalition partner, and that the 55th was "aided, or even, at times, commanded, by al-Qaeda members." Brief for Petitioner-Appellant at 33. Al-Bihani's connections with the 55th therefore render him detainable. His acknowledged actions--accompanying the brigade on the battlefield, carrying a brigade-issued weapon, cooking for the unit, and retreating and surrendering under brigade orders--strongly suggest, in the absence of an official membership card, that he was part of the 55th. Even assuming, as he argues, that he was a civilian "contractor" rendering services . . . those services render Al-Bihani detainable under the "purposefully and materially supported" language of both versions of the MCA.
Al-Bihani, at 9-10.
Al-Bihani's substantive arguments relied heavily on international law. But the D.C. Circuit ruled that international law did not control the President's war powers under the AUMF:
Before considering [al-Bihani's] arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war. This premise is mistaken. . . . . [W]hile the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks, see Hamdi, their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President's war powers.
Al-Bihani, at 7. This seems a rather sweeping claim in light of the Supreme Court's own use of international law in these cases. As Judge Williams wrote in concurrence:
The [above-quoted] paragraph appears hard to square with the approach that the Supreme Court took in Hamdi. . . . In any event, there is no need for the court's pronouncements, divorced from application to any particular argument. Curiously, the majority's dictum goes well beyond what even the governmenthas argued in this case. See Appellees' Unclassified Br. at 23 ("The authority conferred by the AUMF is informed by the laws of war.").
Al-Bihani, at 33-34.
Procedurally, al-Bihani argued that the district court's habeas procedures were inconsistent with Boumediene and habeas procedures for challenges to criminal convictions. In rejecting al-Bihani's claims, the D.C. Circuit ruled that Boumediene left the lower courts to develop their own procedures and held that these need not comport exactly with procedures for challenging criminal convictions. In the absence of more guidance from the Supreme Court, Judge Brown in concurrence all but pleaded with Congress to give the courts some guidance in conducting habeas proceedings for detainees:
[T]he circumstances that frustrate the judicial process are the same ones that make this situation particularly ripe for Congress to intervene pursuant to its policy expertise, democratic legitimacy, and oath to uphold and defend the Constitution. These cases present hard questions and hard choices, ones best faced directly. Judicial review, however, is just that: re-view, an indirect and necessarily backward looking process. And looking backward may not be enough in this new war. . . . Both the rule of law and the nation's safety will benefit from an honest assessment of the new challenges we face, one that will produce an appropriately calibrated response.
Al-Bihani, at 27.