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.
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.”
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.
In the meantime, habeas corpus challenges are continuing the federal courts.
In that decision, the Supreme Court ruled for the first time that Guantánamo detainees enjoyed a constitutional right to pursue habeas corpus challenges in federal court. But the justices left it to the lower courts to work out the details.
Since Boumediene, federal judges have ordered roughly 30 Guantánamo detainees freed while upholding the continued detention of seven others. Al-Bihani was among the seven who had lost their habeas cases.
The importance of the decision
The appeals court decision is important because any standards established by the judicial panel must be applied by the federal judges in Washington who are hearing on-going habeas cases from Guantánamo.
In ruling against Al-Bihani, the appeals court identified a standard for who may be lawfully detained at Guantánamo by the military. “That category of persons includes those who are part of forces associated with Al Qaeda or the Taliban, or those who purposefully and materially support such forces in hostilities against US coalition partners,” the court said.
Judge Brown added: “While we think the facts in this case show Al-Bihani was both part of and substantially supported enemy forces, we realize the picture may be less clear in other cases where facts may indicate only support, only membership, or neither.”
“We have no occasion here to explore the outer bounds of what constitutes sufficient support or indicia of membership to meet the detention standard,” Brown wrote. “We merely recognize that both prongs are valid criteria that are independently sufficient to satisfy the standard.”
Brown went on in the decision to endorse a stripped down version of courtroom procedures that she said would satisfy constitutional standards in Guantánamo habeas cases.
She said the government was entitled to rely on a low level of proof – a preponderance of evidence – to establish that a detainee was a genuine enemy combatant. The burden would then shift to the detainee to rebut the government’s evidence with more persuasive evidence that the detention was unlawful, Brown said.
The court also endorsed the use of hearsay evidence. “The question a habeas court must ask when presented with hearsay is not whether it is admissible – it is always admissible – but what probative weight to ascribe to whatever indicia of reliability it exhibits,” Brown wrote.
P.S. to Congress: step in
In a concurring opinion to her own opinion, Judge Brown suggested that Congress should craft appropriate habeas standards rather than allowing the standards to develop over time through various judicial decisions. “Absent such action [by Congress], much of what our Constitution requires for this context remains unsettled,” she said.
“War is a challenge to law, and the law must adjust,” Brown wrote. “It must recognize that the old wineskins of international law, domestic criminal procedure, or other prior frameworks are ill-suited to the bitter wine of this new warfare.”
“We can no longer afford diffidence,” Brown said. “This war has placed us not just at, but already past the leading edge of a new and frightening paradigm, one that demands new rules be written.”
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