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

By Jeralyn, Section Terror Detainees
Posted on Tue Jan 05, 2010 at 04:53:08 PM EST
Tags: habeas, detainees, Guantanamo (all tags)

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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 reason