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Court sets new rules for legal challenges at Guantánamo

A federal appeals court in Washington ruled against a cook who worked for an Al Qaeda-linked group and was challenging the legality of his detention. The ruling clarified the ground rules for future habeas corpus cases brought by Guantánamo detainees.

By Staff writer / January 5, 2010



A federal appeals court in Washington has set new ground rules that will make it more difficult for Guantánamo detainees to successfully challenge the legality of their open-ended detention.

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The action comes in the case of a Yemeni national who served as a cook for an Arab paramilitary group in Afghanistan in 2001 and who said he never fired his gun or took any belligerent action against the US. Ghaleb Nassar Al-Bihani filed a habeas corpus petition, challenging the legality of his seven-year detention.

The three-judge panel ruled on Tuesday that Mr. Al-Bihani was being lawfully detained by the US military at Guantánamo.

The judges said they reached that conclusion based on Mr. Al-Bihani’s own statements to US officials about his connection with the 55th Arab Brigade. The Arab paramilitary group is described in the 25-page opinion as an ally of the Taliban and included Al Qaeda members within its command structure.

“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,” wrote Judge Janice Rogers Brown for the panel. “Al-Bihani… falls squarely within the scope of the president’s statutory detention powers.”

Complicating Guantánamo

The Al-Bihani case and other habeas corpus challenges highlight the complexity of Obama administration efforts to close the Guantánamo Bay detention camp. On Tuesday, the administration announced it would temporarily halt plans to transfer Yemeni detainees cleared for release from Guantánamo to Yemen.

The transfers have been delayed amid concerns about a resurgent wing of Al Qaeda in Yemen and its suspected role in the attempted Christmas Day bombing of Northwest Flight 253 near Detroit.

In the meantime, habeas corpus challenges are continuing the federal courts.

Tuesday’s decision by the US Circuit Court of Appeals for the District of Columbia seeks to apply the US Supreme Court’s 2008 decision in a case called Boumediene v. Bush.

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