Court sets new rules for legal challenges at 骋耻补苍迟谩苍补尘辞
A federal appeals court in Washington has set new ground rules that will make it more difficult for 骋耻补苍迟谩苍补尘辞 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 骋耻补苍迟谩苍补尘辞.
The judges said they reached that conclusion based on Mr. Al-Bihani鈥檚 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.
鈥淗is acknowledged actions 鈥� accompanying the brigade on the battlefield, carrying a brigade-issued weapon, cooking for the unit, and retreating and surrendering under brigade orders 鈥� strongly suggest, in the absence of an official membership card, that he was part of the 55th,鈥� wrote Judge Janice Rogers Brown for the panel. 鈥淎l-Bihani鈥� falls squarely within the scope of the president鈥檚 statutory detention powers.鈥�
Complicating 骋耻补苍迟谩苍补尘辞
The Al-Bihani case and other habeas corpus challenges highlight the complexity of Obama administration efforts to close the 骋耻补苍迟谩苍补尘辞 Bay detention camp. On Tuesday, the administration announced it would temporarily halt plans to transfer Yemeni detainees cleared for release from 骋耻补苍迟谩苍补尘辞 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鈥檚 decision by the US Circuit Court of Appeals for the District of Columbia seeks to apply the US Supreme Court鈥檚 2008 decision in a case called Boumediene v. Bush.
In that decision, the Supreme Court ruled for the first time that 骋耻补苍迟谩苍补尘辞 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 骋耻补苍迟谩苍补尘辞 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 骋耻补苍迟谩苍补尘辞.
In ruling against Al-Bihani, the appeals court identified a standard for who may be lawfully detained at 骋耻补苍迟谩苍补尘辞 by the military. 鈥淭hat 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,鈥� the court said.
Judge Brown added: 鈥淲hile 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.鈥�
鈥淲e have no occasion here to explore the outer bounds of what constitutes sufficient support or indicia of membership to meet the detention standard,鈥� Brown wrote. 鈥淲e merely recognize that both prongs are valid criteria that are independently sufficient to satisfy the standard.鈥�
Brown went on in the decision to endorse a stripped down version of courtroom procedures that she said would satisfy constitutional standards in 骋耻补苍迟谩苍补尘辞 habeas cases.
She said the government was entitled to rely on a low level of proof 鈥� a preponderance of evidence 鈥� to establish that a detainee was a genuine enemy combatant. The burden would then shift to the detainee to rebut the government鈥檚 evidence with more persuasive evidence that the detention was unlawful, Brown said.
The court also endorsed the use of hearsay evidence. 鈥淭he question a habeas court must ask when presented with hearsay is not whether it is admissible 鈥� it is always admissible 鈥� but what probative weight to ascribe to whatever indicia of reliability it exhibits,鈥� 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. 鈥淎bsent such action [by Congress], much of what our Constitution requires for this context remains unsettled,鈥� she said.
鈥淲ar is a challenge to law, and the law must adjust,鈥� Brown wrote. 鈥淚t 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.鈥�
鈥淲e can no longer afford diffidence,鈥� Brown said. 鈥淭his 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.鈥�
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