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UPDATE: Wide detention power upheld

UPDATE Wednesday p.m. A federal judge on Wednesday gave the Obama Administration its first opportunity in District Court to exploit its victory in this case, calling for new briefing on its impact on a pending habeas case.  The order by District Judge Gladys Kessler is here, applying to detainee Suleiman Awadh Bin Agil Al-Nadhi.


The D.C. Circuit Court, filling in some of the legal blanks left by the Supreme Court on the president’s power to detain terrorist suspects, on Tuesday upheld the broadest view the government has taken of that authority, and ruled that the power is not limited in any way by international law, including the law of war.  Only domestic law controls whom the president may detain, and those home-grown legal concepts sweep widely, the appeals court ruled.  Its decision — very likely to be challenged in further appeals – can be read here.

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.

The Circuit Court panel embraced the definition of detention power first spelled out by the Bush Administration (somewhat wider than the Obama Administration has advocated) and adopted by U.S. District Judge Richard J. Leon.  Leon has been prepared to allow a wider scope for detention than most of his District Court colleagues; their views on the issue must now yield.  Conceivably, the practical result may be that fewer detainees can now win court orders for their release.  While the government has not appealed to the Circuit Court all of the prior release orders, it presumably has a free hand now to contest almost any such order.

Moreover, the government’s chances of defending detentions in court appeared to be enhanced by the new ruling, since the panel concluded that detainees captured on overseas battlefields do not have the full array of procedural rights that, say, a domestic criminal would have in a habeas case.  “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,” the panel said.

The decision was supported in full by two of the most conservative members of the Circuit Court: Judges Janice Rogers Brown (who wrote the main opinion as well as a separate concurrence for herself alone) and Brett M. Kavanaugh.  The third member of the panel, Senior Circuit Judge Stephen F. Williams, supported only the result — denial of habeas for Al-Bihani — and expressly questioned the majority’s view that presidential detention power was not limited by international law, including the law of war.

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.

In her separate opinion, Judge Brown argued that the courts may not be the proper forum for resolving issues raised by “wartime detention,” under existing legal norms.  The processing by a court of habeas claims by such detainees, she indicated, is flawed during wartime.  “In the midst of an ongoing war, time to entertain a process of literal trial and error is not a luxury we have,” the opinion said.  She expressly noted that the Supreme Court “has not foreclosed Congress from establishing new habeas standards” to carry out the Boumediene decision.

The decision applied, in its specific result, only to the case of Ghaleb Nassar Al-Bihani, a Yemeni national who has been at Guantanamo since 2002.  Judge Leon upheld his continued detention, concluding that Al-Bihani had served as a cook in a military brigade that was supporting the Taliban movement in Afghanistan, with links to the Al-Qaeda terrorist network.

The Circuit Court, while denying his habeas challenge, also resolved constitutional and legal issues that are at stake in virtually every other Guantanamo case in the District Courts in Washington — the only court in which such habeas cases are tried.

Judge Brown’s opinion, while speaking very broadly on detention authority and confining very narrowly the habeas rights of detainees, also indicated that there could be “more difficult” cases than Al-Bihani’s coming along.  She did not indicate exactly what that might mean, although she suggested that Al-Bihani’s role as a direct participant in a military unit may have been what made his case easier.  “We have no occasion here,” she wrote, “to explore the outer bounds of what constitutes sufficient support or indica of membership [for a military or terrorist group] to meet the detention standard.”

The language of her majority opinion, and the sentiments she expressed in her separate concurrence, indicated that the panel was largely moved by the view that “an ongoing war” made a major difference not only to the scope of presidential power, but also to the limits on procedural rights for detainees who go to court to test their confinement.

In the context of “wartime detention,” the majority opinion said, “national securfity interests are at their zenith and the rights of the alien [habeas] petitioner at their nadir.”   Judge Brown’s separate opinion also spoke of a novel form of “new warfare,” to which old legal concepts are not well suited.  “War is a challenge to law, and the law must adjust,” she wrote.

On the specific issue of presidential detention power, the majority explicitly accepted the Bush Administration definition (adopted also by Judge Leon) that the power extends to anyone 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.”  (The Obama Administration’s view was that the power should exist when the form of “support” to the Taliban or Al-Qaeda was “substantial.”)

The panel rejected Al-Bihani’s argument that detention power extends only to those who are part of an official state military or to a civilian who has committed a direct hostile act, such as firing a gun in combat.  Al-Bihani insisted he did not fit either category, and, therefore, that international law of war barred his detention.

Presidential detention power, stemming from the post-9/11 congressional resolution (the Authorization for the Use of Military Force), is not limited by international law, the majority said in the part of the opinion to which Judge Williams expressly objected.  Concepts of international law, the majority said, lack “controlling legal force.”

Turning from presidential power to the nature of the legal rights that detainees have in habeas challenges, the majority rejected every one of Al-Bihani’s claims that the procedures used in his case were inadequate.  The panel rejected his claim that a “reasonable doubt” standard should be used to test the government’s reasons for detention, embracing instead a “preponderance of the evidence” (the lowest legal hurdle).

More broadly, the panel turned aside his basic claim that as a detainee he was entitled in his habeas case to the procedural protections that normally are available in a regular court case involving a criminal in custody.   Habeas procedures for wartime detainees, the majority said, need not match those developed for regular criminal cases.

In Judge Williams’ view, Al-Bihani lost his challenge primarily because of his own admissions of a role in a military or para-military unit in Afghanistan.