DC Circuit Appeals Court Upholds Denial of Yemini Detainee's Habeas Petition

The DC Circuit Court of Appeals today affirmed the denial of a habeas petition by a Yemeni detainee, held since 2002. The case is Al-Bihani v. Obama (Circuit docket 09-5051). The opinion is here. Al-Bihani was a cook who went from Saudi Arabia, through Pakistan, to Afghanistan to help the Taliban fight the Northern Alliance. Along the way, he stayed at guest houses he says were Taliban-affiliated and the Government says were al-Qaeda affiliated

He accompanied and cooked for a paramilitary group allied with the Taliban, known as the 55th Arab Brigade, which the Court says included Al Qaeda members. After the U.S. entered the war in Afghanistan, the group was forced to retreat and surrendered to the Northern Alliance. The Northern Alliance held him until 2002 then turned him over to U.S. forces who sent him to Guantanamo.

ScotusBlog dissects the opinion and what it may mean for other detainees. Essentially, it holds that the President's power to detain non-U.S. citizens is not limited by international law, including the law of war. [More...]

First, as for the import, Scotus Blog notes:

The ruling in Al-Bihani v. Obama (Circuit docket 09-5051) was the first by the Circuit Court to directly apply the Supreme Court’s 2008 decision in Boumediene v. Bush creating a constitutional right for Guantanamo Bay detainees to challenge their captivity. Unless reviewed and overturned either by the en banc Circuit Court or the Supreme Court, the new decision will control how scores of detainee cases are resolved in District Court in Washington.

....Although the opinion for the majority represented the views of only two members of the Circuit Court, it is a decision that is binding on any other Circuit panel that hears a Guantanano detainee case raising issues of detention power and courtroom rights. It could be overturned at the Circuit Court level only by a majority of the en banc Court. Al-Bihani’s lawyers have the option of seeking such review, or taking the case on to the Supreme Court.

I particularly didn't like the following: Footnote 2 on page 10:

...we need not rely on the evidence suggesting that Al-Bihani attended Al Qaeda training camps in Afghanistan and visited Al Qaeda guesthouses. We do note, however, that evidence supporting the military’s reasonable belief of either of those two facts with respect to a non-citizen seized abroad during the ongoing war on terror would seem to overwhelmingly, if not definitively, justify the government’s detention of such a non-citizen. Cf. NAT’L COMM’N ON TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT 66–67.

As to the standard of proof required to detain a foreign citizen indefinitely: The court not only endorses a "preponderance of the evidence" standard, it suggests an even lower standard like reasonable suspicion might suffice:

The question of what standard of proof is due in a habeas proceeding like Al-Bihani’s has not been answered by the Supreme Court. See Boumediene, 128 S. Ct. at 2271 (“The extent of the showing required of the Government in these cases is a matter to be determined.”). Attempting to fill this void, Al-Bihani argues the prospect of indefinite detention in this unconventional war augurs for a reasonable doubt standard or, in the alternative, at least a clear and convincing standard.

In refusing to find the "preponderance of evidence" standard unconstitutional, it adds:

We emphasize our opinion does not endeavor to identify what standard would represent the minimum required by the Constitution.

And then another footnote #4:

In particular, we need not address whether a some evidence, reasonable suspicion, or probable cause standard of proof could constitutionally suffice for preventative detention of non-citizens seized abroad who are suspected of being terrorist threats to the United States.

(The opinion notes that such a standard, used by a British court, was overturned as inconsistent with European Union law.)

In holding that Guantanamo detainees have more restrictive habeas rights than U.S. petitioners, it says:

Habeas review for Guantanamo detainees need not match the procedures developed by Congress and the courts specifically for habeas challenges to criminal convictions. Boumediene’s holding explicitly stated that habeas procedures for detainees “need not resemble a criminal trial,” 128 S. Ct. at 2269.

...Detention of aliens outside the sovereign territory of the United States during wartime is a different and peculiar circumstance, and the appropriate habeas procedures cannot be conceived of as mere extensions of an existing doctrine. Rather, those procedures are a whole new branch of the tree.

...Unlike either Hamdi or Al-Marri, Al-Bihani is a non-citizen who was seized in a foreign country. Requiring highly protective procedures at the tail end of the detention process for detainees like Al-Bihani would have systemic effects on the military’s entire approach to war.

And another footnote:

Both Hamdi and Al-Marri involved American citizens or legal residents; the procedures to which Americans are entitled are likely greater than the procedures to which non-citizens seized abroad during the war on terror are entitled.

The Court says Al Bihani was a cook for the 55th Arab Brigade, which fought alongside the Taliban while the Taliban was harboring al Qaeda. He claims he was just a civilian contractor providing services.

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. That language constitutes a standard whose outer bounds are not readily identifiable. But wherever the outer bounds may lie, they clearly include traditional food operations essential to a fighting force and the carrying of arms.

So, if you're not an American, be careful whom you cook for overseas. What if you cater an affair that is being sponsored by a group that is associated with or supports the goals of one of our enemies and there are firearms at the event? Is that enough to authorize your transport halfway across the world to be held for years in indefinite detention at Gitmo? Using a lesser standard of proof than an American would receive, possibly even "reasonable belief", it just might be.

< Obama to Halt Detainee Transfers to Yemen | Govt. Wires Lawyer as Informant to Tape and Incriminate Inmate >
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    And if you are an American (5.00 / 0) (#1)
    by ruffian on Tue Jan 05, 2010 at 06:26:25 PM EST
    don't be surprised if other countries use this standard also.

    I somehow doubt... (none / 0) (#2)
    by diogenes on Tue Jan 05, 2010 at 07:17:21 PM EST
    I somehow doubt that Iran, Russia, or China would give one whit about what European or American law says or doesn't say about how they should treat an American who is, say, cooking for the wrong organization.  How they treat Americans would depend on the power that Americans project.    

    I'm not thinking about those countries (none / 0) (#3)
    by ruffian on Tue Jan 05, 2010 at 07:29:00 PM EST
    that are already beyond the pale. How about the fairly new eastern European democracies? Or Bosnia and Serbia? Don't you think they might be looking to us to set a bit of an example, as a counterpoint to Russia? If they think we are all the same, why would they bother?

    Example: death penalty for (none / 0) (#4)
    by oculus on Tue Jan 05, 2010 at 07:30:11 PM EST
    allegedly mentally ill convicted drug transporter.  China executed him.  British citizen.

    Mission creep (5.00 / 0) (#5)
    by mcl on Wed Jan 06, 2010 at 04:06:54 AM EST
    It now seems to be settled law that habeas corpus doesn't apply to people kidnapped off American soil or kidnapped from foreign soil. These kinds of practices always percolate out of their tightly confined domain, though, until they infest the whole of society. Israel found that out when they legalized torture but only for suspected terrorists: pretty soon every criminals suspect was getting tortured, so the high court of Israel had to put a stop to it.

    In another 10 years we can look forward to habeas corpus getting eliminated for American citizens on American soil. Of course, only in special cases. Then those "special cases" will get less and less special, and 10 years after that, habeas corpus will go away for everyone. And 10 years after that, it'll be common practice for the police to torture anyone they pick up until the suspect confesses. Women, children, old men, won't matter -- they'll just torture everyone until they get a confession. And the courts will uphold it.

    Within another generation the role of the defense lawyer won't be to try to acquit the defendant -- the defendants will all have been tortured into signing confession before appearing in court. No, within another generation the role of the defense lawyer will be to prevent the defendant's family from being tortured and to prevent all of the defendant's assets from being confiscated to pay for the torture + show trial. Within another 30 years defense lawyers will be standing up in court offering pleadings like, "You Honor, and Grand Inquisitor, and Torturer General for the great state of Colorado, if it please the tribunal, I would like to submit evidence the defendant's wife and daught had no knolwedge of the defendant's plans to jaywalk, and I therefore move to strike the court order requiring the defendant's family be tortured to ascertain their complicity."