Ghaleb Nassar Al Bihani, Petitioner, v. Barack H. Obama et al., Respondents

Court	United States District Court for the District of Columbia, United States
Case number	05-1312 (RJL)
Decision title	Memorandum Order
Decision date	28 January 2009
Parties	Ghaleb Nassar Al Bihani Barack H. Obama Robert M. Gates Army Brigade General Jay Hood Army Colonel Nelson J. Cannon
Categories	Terrorism, War crimes
Keywords	jurisdiction, Non-international armed conflict, Terrorism, war crimes
Links	Memorandum Order
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. The Court found that the government had proved by a preponderance of evidence that al Bihani had supported the Taliban: faithfully serving in an al Qaeda affiliated fighting unit that is directly supporting the Taliban by helping to prepare the meals of its entire fighting force suffices.

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.

Related developments

On 5 January 2010, the Petitioner’s leave to appeal was denied.

On 31 August 2010, the Petitioner 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 Petitioner 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 55th Armed Brigade unit 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, 8).

Core legal questions

Does the Petitioner fall within the definition of “enemy combatant” adopted by the Court in is earlier case-law in Boumedienne v. Bush?

Specific legal rules and provisions

Authorisation to Use Military Force.

Court's holding and analysis

In Boumedienne v. Bush, the District Court had held that an enemy combatant is:

[A]n individual 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. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces (p. 5).

The Court considers that the Government has established by a preponderance of the evidence that the Petitioner falls within the definition of “enemy combatant” because he was “part of or supporting Taliban or al Qaeda forces” (p. 6).

It is established that the Petitioner stayed at particular al Qaeda affiliated guesthouses in Afghanistan; and supported the Taliban through his membership of the 55^th Arab Brigade fighting unit. “Support” within the meaning of the definition above means it is not necessary that the Petitioner actually fired a weapon against the US or coalition forces; it suffices that the Petitioner had close ties to the Taliban and al Qaeda affiliated forces as a member of the Arab Brigade Unit, even in a non-front-line capacity. Furthermore, the Petitioner has admitted to serving under an al Qaeda military commander (pp. 7-8).

The Petitioner alleges that he was only a cook in the Arab Brigade; the Court finds that faithfully serving in an al Qaeda affiliated fighting unit that is directly supporting the Taliban by helping to prepare the meals of its entire fighting force is more than sufficient “support” to satisfy the Court’s definition (p. 9).

The Petitioner’s petition for a writ of habeas corpus is denied (p. 9).