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Court Rules Obama’s Detention Powers Not Limited by Laws of War

Stephen C. Webster

Flags wave above the sign posted at the entrance to Camp Justice, the site of the U.S. war crimes tribunal compound, at Guantanamo Bay U.S. Naval Base in Cuba May 31, 2009. (REUTERS/Brennan Linsley/Pool)

The Washington, D.C. Circuit Court of Appeals issued a ruling
Tuesday that upholds the Bush administration's broad claims of
executive power to detain non-citizens.

The case, Al-Bihani v.
Obama, "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," according to the SCOTUS blog.
"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."

defendant in the case, whose habeas petition was denied by the court,
is Ghaleb Nassar Al Bihani, a citizen of Yemen who served Taliban
fighters as a cook and claims he never even fired a shot.

"After all, as Napoleon himself was fond of pointing out, 'An army marches on its stomach,'" wrote U.S. District Judge Richard Leon in early 2009, in a ruling that allowed Al-Bihani's continued imprisonment.

has been in Guantanamo Bay since 2002. While his habeas petition was
filed in 2005, it languished until 2008, when the Supreme Court finally
ruled on Boumediene v. Bush, determining that Guantanamo detainees
should be allowed to challenge their detention.

"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," SCOTUS blog explained. "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."

In the ruling, the court opined:

legal issues presented by our nation's fight with this enemy have been
numerous, difficult, and to a large extent novel. What drives these
issues is the unconventional nature of our enemy: they are neither
soldiers nor mere criminals, claim no national affiliation, and adopt
long-term strategies and asymmetric tactics that exploit the rules of
open societies without respect or reciprocity.

"War is a
challenge to law, and the law must adjust. 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. 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. Falling back on the
comfort of prior practices supplies only illusory comfort."

"So, if you're not an American, be careful whom you cook for overseas," concluded an analysis at TalkLeft.
"What if you cater an affair that is being sponsored by a group that is
associated with or supports the goals of one of our enemies and there
are firearms at the event? Is that enough to authorize your transport
halfway across the world to be held for years in indefinite detention
at Gitmo? Using a lesser standard of proof than an American would
receive, possibly even 'reasonable belief', it just might be."

Read the court's full opinion (PDF link).

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