Al-Bihani v. Obama
619 F.3d 1, 590 F.3d 866, 389 U.S. App. D.C. 26 (2010)
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Rule of Law:
The President's authority under the Authorization for Use of Military Force (AUMF) to detain enemy combatants is not limited by the international laws of war. An individual may be detained if they were 'part of' or 'supported' Al Qaeda, the Taliban, or associated forces engaged in hostilities against the United States or its coalition partners.
Facts:
- In the first half of 2001, Ghaleb Nassar Al-Bihani, a Yemeni citizen, traveled from Saudi Arabia to Afghanistan to defend the Taliban against the Northern Alliance.
- During his journey, he stayed at guesthouses affiliated with the Taliban.
- In Afghanistan, Al-Bihani joined the 55th Arab Brigade, a paramilitary group allied with the Taliban that included Al Qaeda members within its command structure.
- He served as the brigade's cook and carried a brigade-issued weapon, though he never fired it in combat.
- Following the U.S.-led invasion in October 2001, the 55th Arab Brigade was forced to retreat.
- At the end of the retreat, Al-Bihani, along with the rest of the brigade, surrendered to Northern Alliance forces.
- In early 2002, Northern Alliance forces transferred Al-Bihani into the custody of U.S. forces.
- The U.S. military subsequently transported Al-Bihani to the detention facility at Guantanamo Bay, Cuba.
Procedural Posture:
- Ghaleb Nassar Al-Bihani filed a petition for a writ of habeas corpus in the U.S. District Court for the District of Columbia to challenge his detention.
- The district court stayed the petition pending the Supreme Court's decision in Boumediene v. Bush.
- Following the Boumediene decision, the district court lifted the stay and established a case management order outlining the procedures for the habeas proceeding.
- After filings and a hearing, the district court denied Al-Bihani's petition, finding that his detention was authorized because he was part of or supported Taliban or Al Qaeda forces.
- Al-Bihani (appellant) appealed the district court's denial of his habeas petition to the U.S. Court of Appeals for the District of Columbia Circuit, where the government was the appellee.
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Issue:
Does the President's authority under the Authorization for Use of Military Force (AUMF) permit the detention of an individual who was part of or supported forces associated with Al Qaeda or the Taliban, irrespective of limitations imposed by the international laws of war?
Opinions:
Majority - Brown, J.
Yes, the President's authority under the AUMF permits the detention of an individual who was part of or supported forces associated with Al Qaeda or the Taliban, and this authority is not limited by the international laws of war. The AUMF grants the President the power to use 'all necessary and appropriate force,' which includes detention. International laws of war are not domestically implemented and do not act as extra-textual limits on the President's statutory war powers. The scope of detention authority is informed by, and is at least as broad as, the authority to try individuals by military commission, which under the Military Commissions Acts (MCAs) includes those who 'purposefully and materially supported hostilities.' Al-Bihani's actions—cooking for, carrying a weapon for, and accompanying the 55th Arab Brigade (an associated force of the Taliban and Al Qaeda)—fall squarely within the 'part of' and 'support' prongs of the detention standard. Furthermore, the determination of when hostilities have ceased is a political question deferred to the Executive branch, and the procedural protections in detainee habeas cases need not mirror those in domestic criminal cases; a preponderance of the evidence standard and the admission of hearsay are permissible.
Concurring - Brown, J.
This opinion expresses concern that the court-driven, common-law process is ill-suited to developing the legal rules for wartime detention in the context of a new and unconventional war. The limited number of cases, the need for a swift and uniform response, and the high stakes for national security suggest that this area is ripe for legislative action. Congress, with its policy expertise and democratic legitimacy, is better positioned than the judiciary to craft a comprehensive framework to address the novel challenges posed by non-state extremist enemies. Absent such action, courts are left to apply old legal frameworks to a new paradigm of warfare, which may be inadequate to protect both individual rights and national safety.
Concurring - Williams, S.J.
Yes, Al-Bihani's detention is lawful, but the decision should be reached on narrower grounds without addressing the broader constitutional and international law questions. The court need not decide the relationship between the AUMF and the laws of war, or the constitutionality of the habeas procedures, because Al-Bihani's own conceded facts are sufficient to justify his detention. He admitted to cooking for and carrying a weapon for the 55th Arab Brigade, a group that fought to protect the Taliban regime as it harbored Al Qaeda. This makes the 55th Brigade itself an organization that 'harbored' Al Qaeda under the AUMF, and Al-Bihani's involvement made him a lawful target. The majority's broad pronouncement that the laws of war do not limit the AUMF is unnecessary dicta that is difficult to square with Supreme Court precedent and goes beyond what even the government argued.
Analysis:
This decision was one of the first major D.C. Circuit rulings interpreting the scope of detention authority after the Supreme Court's decision in Boumediene. It significantly strengthened the executive's detention power by explicitly decoupling the statutory authority of the AUMF from the traditional constraints of the international laws of war. The ruling established a broad standard for detention, allowing it based on mere 'support' for associated forces, which could include non-combat activities. Furthermore, by endorsing lower procedural standards for habeas proceedings—specifically the preponderance of the evidence burden and the admissibility of hearsay—the court set a precedent that made it less difficult for the government to defend its detention decisions in future cases.
