Ghaleb Nassar Al Bihani, Appellant, v. Barack Obama, President of the United States, et al., Appellees

Court	United States Court of Appeal, District of Columbia, Unites States of America, United States
Case number	09-5051
Decision title	Appeal from the United States District Court for the District of Columbia
Decision date	5 January 2010
Parties	Ghaleb Nassar Al-Bihani Barack Obama Robert M. Gates Army Brigade General Jay Hood Army Colonel Nelson J. Cannon
Categories	War crimes
Keywords	jurisdiction, Non-international armed conflict, war crimes
Links	Judgment
Other countries involved	Afghanistan Cuba

Summary

Al Bihani, Yemeni citizen and Saudi Arabian national, travelled to Afghanistan in May 2001 on jihad (holy war). He became a member of the 55^th Arab Brigade and, by his own admission, acted as a cook. The Brigade carried out a number of operations in support of the Taliban against the United States and its allies in the Northern Alliance. Al Bihani was transferred to the custody of the United States Armed Forces and thereafter to Guantanamo Bay following the surrender of his unit. Alleging the illegality of his detention at Guantanamo, al Bihani petitioned the District Court for the District of Columbia for a writ of habeas corpus. His petition was denied on the grounds that he was an “enemy combatant” within the meaning of the definition of such decided by the Court in its earlier case of Boumedienne v. Bush. On appeal, the Court of Appeals for the District of Columbia dismissed Al Bihani’s appeal.

Procedural history

Al Bihani, the Petitioner, is a Yemeni citizen and a Saudi Arabian national.

In May 2001, he left his home in response to a fatwa (religious decree) issued by a local Sheikh in order to fight jihad (holy war) in support of the Taliban against the Northern Alliance. Once in Afghanistan, the Petitioner allegedly received military training at an al Qaeda camp and then joined a military unit. That military unit engaged in operations against the Northern Alliance near Khwajeh Ghar, Afghanistan.

In November 2001, the Petitioner and his unit retreated after the initiation of bombing by the United States and its allied forces. They regrouped at a guest house near the Pakistani border and eventually surrendered to a Northern Alliance commander.

In June 2002, the Petitioner was transferred to the custody of the United States Armed Forces and thereafter to Guantanamo Bay, Cuba.

On 30 June 2005, the Petitioner filed his habeas corpus petition with the Court alleging the illegality of his detention.

By a decision of 28 January 2009, the District Court for the District of Columbia denied the petition on the grounds that Petitioner was an enemy combatant and was therefore lawfully detained.

Related developments

On 31 August 2010, the Appellant was denied an en banc rehearing of the case on the grounds that the issue of appeal – whether the President’s detention authority is constrained by international law – was not a determination necessary to the merits of the case.

As of 12 November 2012, the Appellant has been held at Guantanamo for 10 years and 10 months.

On 15 May 2014, the Obama administration’s Periodic Review Board, by consensus, determined continued law of war detention of the detainee is no longer necessary to protect against a continuing significant threat to the security of the United States and approved Mr. Al Bihani for transfer from Guantanamo.

Legally relevant facts

Since May 2001, al Bihani was a member of the paramilitary group, the 55th Armed Brigade unit, which was affiliated with the Taliban and served therein as a cook. His unit carried out a number of military operations against the United States and the Northern Alliance (pp. 2-3).

Core legal questions

Can “support” for the Taliban or al Qaeda amount to a legal basis for the detention of an individual under international law?
Do the customary rules on co-belligerency limit the detention powers of the President?
The conflict with the Taliban having ended, should al Bihani be released?

Specific legal rules and provisions

Paragraph 2(a) of the 2001 Authorisation to Use Military Force.
Article 118 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War.
2005 US Detainee Treatment Act.

Court's holding and analysis

It results from the 2001 Authorisation to Use Military Force and the 2006 and 2009 Military Commissions Acts that the definition of “enemy combatant” identified by the District Court falls within such authorities. It therefore suffices for al Bihani to be identified as an “enemy combatant” that he participated in the command structure of the 55^th Arab Brigade, an al Qaeda affiliated outfit (pp. 8-9).

The actions acknowledged by Al Bihani – accompanying the brigade on the battle field, carrying an issued weapon, cooking for the unit – strongly suggest, in the absence of a membership card, that he was a part of the Brigade rendering him detainable (p. 10).

The laws of co-belligerency do not limit the President’s detention power. Such laws only provide nation states, upon notice of a conflict, the opportunity to decide whether to remain neutral or not. The 55^th Armed Brigade is clearly not a state, but rather an irregular fighting force operating within the borders of Afghanistan and thus the rules of co-belligerency are not applicable (p. 11).

Pursuant to Article 118 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, when an international armed conflict has ended, prisoners of war must be released without delay. The Court rejected al Bihani’s argument that, since the hostilities with the Taliban have ended, he should be released without delay on the grounds that: (1) it is not clear if al Bihani was captured in the conflict with the Taliban or with al Qaeda (he does not argue that the latter conflict is over); (2) the Convention requires the end of “active hostilities” that is, fighting, which is a decision of the Executive (pp. 12-13).

Al Bihani’s continued detention is lawful. The appeal is dismissed (p. 25).

Further analysis

C.M. Venter, 'Old Wineskins – Bitter Wine: The Inappropriate Use of the Balancing Metaphor in the Hamdi and Al-Bihani Cases', SSRN, 2010;
J. Hafetz, 'Calling the Government to Account: Habeas Corpus after Boumedienne', SSRN, 2011;
J. J. Paust, 'Still Unlawful: The Obama Military Commissions, Supreme Court Holdings, and Deviant Dicta in the D.C. Circuit', Cornell International Law Journal, 2012, Vol. 45, pp. 368-392;
L.M. Olson, 'Guantanamo habeas Review: Are the DC District Court’s Decisions Consistent with IHL Internment Standards?', Cape Western Reserve Journal of International Law, 2009, Vol. 42;
C. Waring, 'The Removal of International Law from Guantanamo Detainee Litigation: Problems and Implications of Al-Bihani v. Obama', Georgetown Journal for International Law, 2011-2012, Vol. 43, pp. 927-958.

Instruments cited

Geneva Convention relative to the Treatment of Prisoners of War (GC III), 12 August 1949, 75 UNTS 135, entered into force 21 October 1950.
United States Authorization for Use of Military Force (AUMF), Public Law No. 107-40 (115 Stat. 224) of 2001.
Department of Defense Appropriations Act of 2006 (Title X, H.R. 2863), 2005 Detainee Treatment Act of 2005.

Related cases

Supreme Court of the United States, Boumediene et al. v. Bush et al.,Civil Actions Nos. 06-1195 and 06-1196, 12 June 2008;
US District Court for the District of Columbia, Ghaleb Nassar Al Bihani, Petitioner, v. Barack H. Obama, et al, Respondents, Civil Case No. 05-1312 (RJL), Memorandum Order, 28 January 2009;
Court of Appeals for the District of Columbia Circuit, Ghaleb Nassar Al-Bihani, Appellant, v. Barack Obama, President of the United States, et al, Appellees, No. 09-5051, Appeal from the United States District Court for the District of Columbia on Petition for Rehearing En Banc, 31 August 2010.

Additional materials

A. Scheinkman et al., 'Guantanamo Docket: Ghaleb Nassar al Bihani', New York Times;
T. Joscelyn, 'Traditional Absurdity', The Weekly Standard, 1 September 2010.